Citation Nr: 18151812 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-23 181 DATE: November 20, 2018 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran’s service-connected degenerative joint disease of the right knee. Entitlement to service connection for a mood disorder (claimed as depression/stress) is denied. REMANDED Entitlement to service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran's service-connected degenerative joint disease of the right knee is remanded. Entitlement to an evaluation in excess of 20 percent disabling for service-connected degenerative joint disease (DJD) of the right knee residuals of repairs of tears of the menisci and anterior cruciate ligament is remanded. FINDINGS OF FACT 1. A final decision continuing the prior denial of the claim for service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran’s service-connected degenerative joint disease of the right knee, was issued in January 2011; no evidence was submitted within one year following that decision or any disagreement; that decision is final. 2. The Veteran has submitted new evidence that is material to the claim; as such, the claim is reopened. 3. The evidence of record demonstrates that the Veteran’s mood disorder (claimed as depression/stress), did not manifest in service or for many years thereafter and is not otherwise casually related to active service. CONCLUSIONS OF LAW 1. The January 2011 rating decision continuing the prior denial of entitlement to service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran’s service-connected degenerative joint disease of the right knee, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received; the claim for service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran’s service-connected degenerative joint disease of the right knee, is reopened. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for establishing entitlement to service connection for a mood disorder (claimed as depression/stress) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from May 1983 to July 1991. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant Veterans Claims Assistance Act of 2000 (VCAA) notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence In this case, the Veteran did not submit a notice of disagreement (NOD) in response to the January 2011 rating decision continuing the previous denial of service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary to the Veteran’s service-connected degenerative joint disease of the right knee,11 on the basis that there was no evidence of a nexus. 38 U.S.C. § 7105. Evidence received since that decision includes multiple lay statements reporting chronic back pain due to the Veteran’s service-connected right knee. This evidence is new to the record, relates to a previously unestablished relationship to a service-connected disability, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened; the underlying service connection issue is addressed in the remand below. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303 (a), 3.304. Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the Veteran or on his behalf. 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). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for a mood disorder (claimed as depression/stress) The Veteran contends that his mood disorder, previously described as depression and stress, is causally related to active service. On review of the record, the Board concludes that, while the Veteran has a diagnosis of a mood disorder, not otherwise specified (NOS), the preponderance of the evidence is against finding that it began during active service, or is otherwise related to 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), (d). Service treatment records are silent for complaints of depression, stress, or a diagnosis of any mental health condition. According to the Veteran’s DD-214, his official military occupation was listed as an operations specialist. Completion of a Navy Correctional Specialist program was also indicated. No traumatic events were reported during active service. Post-service treatment records show that the Veteran has a current diagnosis of a mood disorder, NOS. A treatment note, dated September 2009 referenced anxiety, depression, and that the Veteran previously received counseling. The record noted that he was “transiently” on medications, but no current prescriptions were indicated. In July 2013, the Veteran was afforded a VA examination. During the clinical evaluation, he reported a medical discharge from active service due to a right knee injury. The Veteran worked as a correctional officer in-service. Post-service, he owned and operated a sports bar from 1991-2009. He stated that the business was dissolved and he filed for bankruptcy due to financial problems. The Veteran acknowledged a long-time gambling addiction and admitted losing large sums of money due to his habit. He sought support for his addiction and joined Gamblers Anonymous. The Veteran denied involvement in any gaming activities over the prior 3-year period. Excessive gambling led to the breakup of two marriages. After separation, the Veteran reported meeting with a counselor and a psychiatrist for a few months. He stated a diagnosis of post-traumatic stress disorder was rendered and the condition was deemed secondary to childhood abuse. Reportedly, the Veteran’s father was an alcoholic and verbally abusive during his childhood. He acknowledged use of oral prescription medications to treat his depression and anxiety, however, the medications caused him to “feel like a zombie.” The Veteran was last seen by a VA psychiatrist in January 2010 with no additional follow-up. At that time, a diagnosis of a mood disorder, NOS was noted. There is no prior history of psychiatric hospitalizations or suicide attempts. The Veteran endorsed ongoing anxiety and depression. Current symptoms include a depressive mood, anxiety, with disturbance of motivation and mood. Following the clinical evaluation, the examiner concluded that the Veteran’s symptoms met the DSM-IV criteria for Mood Disorder NOS. The medical evidence did not support a causal linkage between his mood disorder and active service, to include as secondary to his service-connected degenerative joint disease, right knee residuals of repairs of tears of the menisci and anterior cruciate ligament. Thus, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s mood disorder was caused by or otherwise related to active service. Further, the examiner concluded that there was no medical evidence that Veteran’s depression was aggravated beyond its natural progression by any service-connected disability. In support of the stated conclusion, the examiner noted that the Veteran’s history of Mood Disorder NOS had been untreated for over 3 years. His symptoms of depression and anxiety, by the Veteran’s own admission, were most likely due to personal and economic stressors. Notably, he acknowledged a long history of family dysfunction secondary to his gambling addiction. The record shows that the last time that Veteran was seen by a mental health professional was in 2010. He also reported depression secondary to frustrations with the VA claims process. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. While the Veteran is competent to report that he suffers from depression, stress and anxiety, in this case, his report of symptoms standing alone, are insufficient to establish a “nexus” to active service. Further, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372. While the Board recognizes the Veteran’s subjective belief that his mood disorder is causally related to active service, the Board finds that the medical evidence does not support his assertion. Specifically, service treatment records fail to show any complaints of depression, a traumatic event, or a diagnosis of a mental health condition. Post-service treatment records show only sporadic mental health involvement. On VA examination, the Veteran admitted a long-time addiction to gambling and stated that the habit contributed to the break-down of two marriages. He also suggested financial stressors as the cause of losing his business and overall anxiety and depression. At no time has the Veteran specifically identified any in-service incident which contributed to or caused his symptoms of depression or anxiety. He also has not asserted any increase in anxiety or depression as due to his service-connected disabilities. Based upon the forgoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s mood disorder is casually related to active service, to include as due to his service-connected disabilities. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a mood disorder, also claimed as depression and stress, must be denied. REASONS FOR REMAND The issues of entitlement to service connection for degenerative discopathies, L3-L4, L4-L5, to include as secondary the Veteran's service connected degenerative joint disease of the right knee and entitlement to an evaluation in excess of 20 percent disabling for service-connected DJD of the right knee residuals of repairs of tears of the menisci and anterior cruciate ligament are remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran’s claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The Veteran contends that his degenerative discopathies at L3-L4, L-4, are casually related to active service, to include as due to overcompensation for his service-connected DJD of the right knee. He also asserts that his service-connected right knee is worse than currently evaluated. Service treatment records indicated that the Veteran was involved in a motor vehicle accident during active service. On examination in January 1988, he complained of neck and lower back pain. Radiologic imaging of both the cervical and lumbar spines were negative for any evidence of fracture or subluxation. No complaints of neck or back pain were noted at separation. Post-service treatment show complaints of chronic low back pain. Magnetic resonance imaging (MRI) revealed L4-L5 degenerative discopathy which was more pronounced at L3-L4. On VA examination in March 2010 and May 2010, the VA examiner opined that it is less likely than not the Veteran’s lumbar spine condition was causally related to active service, to include as secondary to his DJD of the right knee. Instead, the examiner asserted that his condition was more likely related to excessive weight. In multiple lay statements, the Veteran has continued to assert a causal linkage between his lumbar spine condition and his service-connected DJD of the right knee. An internal medicine record, dated January 2016, indicated that the Veteran has been under the care of a rheumatologist. Complaints of chronic neck and low back pain were referenced. The record also noted ACL reconstruction of both knees, with the right knee described as casually related to an in-service injury and the left knee resulting from fall from a ladder. In March 2016, the Veteran was afforded a VA examination of the lumbar spine. The examiner opined that the Veteran’s thoracolumbar spine condition (reported as degenerative discopathies, L3-L4, L4-L5) is less likely than not (less than 50 percent) incurred or caused by the complaints/condition (reported as lower back pain after MVA) noted during the military service. In support of the stated conclusion, the examiner indicated that no significant right knee problems or functional impairments were demonstrated by VA examinations of the right knee in March 2010 and July 2013. Further, the examiner stated that the record failed to show that the Veteran’s right knee condition impacted his ability to work. Thus, it was concluded that the Veteran does not suffer from a mechanically unstable right knee joint that would compromise his ability to ambulate or result in an unsteady gait such that any weight shifting impact would result to the lumbar spine area. However, the Veteran’s lay statements specifically contradict the VA examiner’s conclusion that he does not suffer a functional impact from his right knee condition or any impairment to his ability to work. In fact, multiple lay statements report chronic back pain due to the Veteran’s service-connected right knee. Specifically, the Veteran reported that he owned a bar from 1991-2009. Over a ten-year period, he suffered from worsening knee and back pain that eventually caused him to become physically incapable of operating the bar. The Veteran acknowledged walking with a limp over the prior 5 or 6 years which cased pain and numbness that radiated through his lower back. As due to his chronic knee and back pain, he suffers from an impaired ability to walk or stand for prolonged periods. Review of the record indicated that the Veteran’s right knee was last evaluated in July 2013. The Board recognizes that the Veteran is generally competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snzy’fer v. Gober, 10 Vet. App. 400 (1997). Further, because the outcome of the Veteran’s increased rating claim for his service-connected right knee could significantly impact a decision on his claim for service connection for low back pain, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination and request that a clarification opinion be provided to determine the nature and current severity of the Veteran’s DJD of right knee. The entire claims file, to include any newly associated records and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. (a) Conduct range of motion testing for each joint actively and passively, in weight-bearing and non-weight bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. (b) Specifically, the examiner is invited to comment on possible instability of the right knee and any possible impact and/or connection to his thoracolumbar spine condition. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s back disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that a back disability was caused by or otherwise related to active service, to include as secondary to his service connected DJD of the right knee. The examiner is invited to specifically comment on whether instability as due to the Veteran’s service-connected DJD of the right knee caused or aggravated the Veteran’s lumbar spine condition. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 3. After completing the above, and any other development as may be indicated by any response received because of the actions taken in the preceding paragraphs, the Veteran’s claims should be re-adjudicated based on the entirety of the evidence. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel