Citation Nr: 18153782 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-35 456 DATE: November 28, 2018 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) is denied. REMANDED ISSUE Service connection for lumbar strain is remanded. FINDINGS OF FACT The Veteran’s current MDD is less likely than not related to service. CONCLUSIONS OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to June 2010. The case is on appeal from an August 2014 rating decision in which service connection for MDD was denied and an April 2015 rating decision in which service connection for lumber strain was denied. Initially, the Veteran also appealed the denial of service connection for a gastroesophageal reflux disease. However, service connection was granted in a June 2016. As this represents a full grant of the benefit sought, the claim is no longer before the Board. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Service connection for gallstones was also denied in the April 2015 rating decisions. While the Veteran noted disagreement with the denial, he has limited his appeal to the Board to the issues of service connection for MDD and lumbar strain. Given the medical evidence of record and contentions of the Veteran, the Board has recharacterized his claim for service connection for MDD as one for service connection for an acquired psychiatric disorder, to include MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) Duty to Assist The Veteran in his July 2016 Appeal to the Board noted continued treatment for back pain. However, he has not indicated on-going treatment for depression. If he were and such information were beneficial to the claim, the Board finds that the Veteran would identify the information useful to the claim. As he has not, there is no reasonable possibility that obtaining the identified records would substantiate the claim. 38 C.F.R. § 3.159(d); see also Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (stating that “VA’s duty to assist is not unlimited, and subsection (d) to § 3.159 provides an important limitation on the VA’s duty to assist”). Analysis The Veteran states that his MDD is related to his service in Iraq and that he was diagnosed with a mental health disorder shortly upon his return home. Specifically, he notes a diagnosis of adjustment disorder with depressed mood from February 2009 and treatment with antidepressant during service. He also notes that depressive symptoms onset after his friend, a fellow servicemember, was killed in Afghanistan. MDD was first noted in the Veteran’s VA treatment records in December 2013. In April 2014, the Veteran reported that he was hospitalized twice for suicidal ideation during service. Service treatment records (STRs) do note mental health treatment and a diagnosis of adjustment disorder with depression, but not hospitalization or suicidal ideation. The Veteran reported that suicidal ideation onset in 2010 after learning of his spouse’s affair. The Veteran was afforded a VA examination of his mental health condition in August 2014. The examiner noted a diagnosis of MDD. The Veteran reported depressive symptoms onset in 2009 after learning of his spouse’s infidelity. The Veteran reported first seeking treatment at VA in December 2013. At that time, the Veteran’s fiancé would find him crying and the Veteran would awake in the night and check to see if the doors and windows were secure. The Veteran attributed his symptoms to lack of employment which led to low self-esteem. The examiner opined that the Veteran’s MDD was less likely than not related to service as symptoms during service were related to then-current psychosocial and environmental problems that are no longer present and do not currently cause clinically significant symptoms of a mental disorder. The Veteran also submitted a November 2014 disability benefit questionnaire (DBQ) from his VA clinician. A diagnosis of depression was noted, and details regarding the Veteran’s then-current symptoms were noted. However, no opinion as to whether depression was at least as likely as not related to service was given. The Board finds the VA examiner’s opinion as to the etiology of the Veteran’s MDD persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). During the examination, the Veteran himself noted that his in-service symptoms stemmed from a painful end to his first marriage. By contrast, the Veteran attributed his current symptoms to lack of employment. The examiner’s medical opinion that the Veteran’s in-service symptoms were related to very stressful psychosocial symptoms no longer present is consistent with the Veteran’s own reports and his VA treatment record. Additionally, the attribution of the Veteran’s mental disorder to his marital and employment concerns are consistent with his STRs and other objective evidence of record. The Veteran also noted the death of a close friend and fellow servicemember that has affected him. If that was a root cause of his MDD or in-service symptoms, the Board finds that the Veteran would have reported his friend’s death during the VA examination or in other treatment. He has not. The Board’s denial of his claim is not meant to diminish his loss or his friend’s service. Rather, the Board is attempting only to ascertain whether MDD is related to service based on the most persuasive evidence of record. Therefore, the medical evidence demonstrates that MDD is less likely than not related to service. As the preponderance of the evidence, there is no reasonable doubt to be resolved, 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, and service connection for an acquired psychiatric disorder, to include MDD is denied. REMANDED ISSUE Service connection for lumbar strain is remanded. The Veteran claims that his diagnosed lumbar strain began in and has continued since service. There is no dispute that the Veteran currently experiences lumbar strain. In addition, the Veteran during service periodically complained of low back pain. The remaining inquiry that the Board must resolve is whether the Veteran’s low back pain in service is related to his current lumbar strain. In July 2014, the Veteran reported back pain for two weeks unrelated to trauma. In April 2015, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with lumbar strain and noted that STRs showed occasional complaints of back ache and one report of midback pain. However, the examiner opined that lumbar strain was less likely than not related to service because the Veteran’s back pain during service was “acute” and “transitory” in nature. There was no evidence of a chronic back condition. Further, the notation of back pain post-service did not occur until 2014, four years after separation. In this regard, the Veteran stated in his April 2016 notice of disagreement and July 2016 Appeal to the Board that his continued treatment for back pain since discharge should be proof that his condition is not acute. In fact, in his Appeal to the Board, the Veteran stated that he sought VA treatment for his back as soon as he discovered he was eligible for services at VA and that before that time he was taking over-the-counter medication to manage pain. The April 2015 examiner, when forming his opinion, did not have the benefit of the Veteran’s lay statements regarding the onset of pain, including the Veteran’s reported self-treatment for back pain immediately after service. This information is material to the claim, and an opinion in which the examiner has the opportunity to consider these lay statements would help the Board in adjudicating the claim. The Veteran has reported on-going VA treatment for his lumbar strain as well. These treatment records should be obtained on remand as well. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records related to the Veteran’s lumbar spine disorder. 2. Thereafter, obtain an addendum opinion regarding the etiology of the Veteran’s lumbar spine disorder. Specifically, the examiner should opine as to whether: It is at least as likely as not that the Veteran’s lumbar spine disorder is related to service. A complete rationale should be provided for any opinion rendered. In doing so, the examiner should consider the Veteran’s statements in his April 2016 notice of disagreement and July 2016 Appeal to the Board that his continued treatment for back pain since discharge should be proof that his condition is not acute and that he sought VA treatment for his back as soon as he discovered he was eligible for services at VA and that before that time he was taking over-the-counter medication to manage pain. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George