Citation Nr: 18156032
Decision Date: 12/06/18	Archive Date: 12/06/18

DOCKET NO. 16-04 276
DATE:	December 6, 2018
ORDER
Entitlement to service connection for major depressive disorder is granted.
REMANDED
Entitlement to service connection for right leg injury is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for an acquired psychiatric disorder other than major depressive disorder, to include posttraumatic stress disorder (PTSD), is remanded.
Entitlement to service connection for a psychosis other than major depressive disorder for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 is remanded.
Entitlement to an initial rating in excess of 20 percent prior to March 1, 2016, and in excess of 10 percent thereafter, for chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion (also claimed as left lower extremity swelling of unknown etiology/left leg injury) is remanded.
Entitlement to an initial compensable rating prior to July 17, 2014, and in excess of 30 percent thereafter, for headaches is remanded.
Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is remanded.
FINDING OF FACT
Resolving reasonable doubt in the Veteran’s favor, the Veteran has a current diagnosis of major depressive disorder aggravated by his service-connected headaches and chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion.
CONCLUSION OF LAW
The criteria for secondary service connection for major depressive disorder are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 2011 to October 2013.
In an August 2018 statement, the Veteran elected to participate in VA’s Rapid Appeals Modernization Program (RAMP).  However, appeals that have been activated by the Board are not eligible for RAMP processing.  This appeal was activated by the Board prior to the Veteran’s participation in RAMP.  Therefore, the Board will continue with adjudication pursuant to current appeals procedures.
1. Entitlement to service connection for major depressive disorder is granted.
June 2015 and December 2013 private examiner reports show the Veteran has a current diagnosis of major depressive disorder.  The June 2015 private examiner opined that the Veteran’s service-connected headaches and chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion more likely than not aggravated his major depressive disorder.  The June 2015 private examiner explained that the Veteran struggles with his service-connected physical disabilities, and that he is frustrated by his inability to engage in activities he used to enjoy.  The June 2015 private examiner also cited an article suggesting a link between psychiatric issues, especially major depression, and chronic daily headaches.  The December 2013 private examiner also noted the Veteran’s reports that he was depressed and irritated from his physical limitations.  The Veteran reported that he had planned on a career in the Army, and was excelling, until he had his injury and was unable to return to his unit.  The December 2013 private examiner listed stressors of physical limitations, pain, and psychosocial issues as related to his major depressive disorder diagnosis.  An April 2013 private treatment record noted that the Veteran reported depressive symptoms during treatment for his service-connected lymphedema/ left leg disability.  Social Security Administration (SSA) records show that the Veteran reported feeling hopeless after his injury, and experiencing mood problems and fears relating to his leg disability.  Although the May 2014 VA examiner opined that the Veteran did not have a mental health diagnosis, the VA examiner attributed the Veteran’s symptoms to psychosocial stressors and indicated that the Veteran’s service-connected lymphedema/ left leg disability may impact his mood.  Accordingly, viewing the evidence as a whole and in the light most favorable to the Veteran, service connection for major depressive disorder is warranted as secondary to the Veteran’s service-connected headaches and chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion.
REASONS FOR REMAND
1. Entitlement to service connection for right leg injury is remanded.
2. Entitlement to service connection for hypertension is remanded.
3. Entitlement to service connection for an acquired psychiatric disorder other than major depressive disorder, to include PTSD, is remanded.
4. Entitlement to service connection for a psychosis other than major depressive disorder for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 is remanded.
5. Entitlement to an initial rating in excess of 20 percent prior to March 1, 2016, and in excess of 10 percent thereafter, for chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion (also claimed as left lower extremity swelling of unknown etiology/left leg injury) is remanded.
6. Entitlement to an initial compensable rating prior to July 17, 2014, and in excess of 30 percent thereafter, for headaches is remanded.
7. Entitlement to a TDIU is remanded.
Remand of the remaining claims is appropriate as it appears treatment records are missing from the Veteran’s claims file.  The Veteran has reported medical treatment at Womack Army Medical Center and University of North Carolina Hospitals since discharge, but the Veteran’s claims file does not contain such documents.  See May 2014 VA Examination Report.  In addition, the Veteran’s private examiners noted prescriptions not in the Veteran’s claims file, which also suggests that there are outstanding treatment records.  See June 2015 Private Psychiatric Examination Report; October 2015 Private Headache Examination Report.  Accordingly, remand is appropriate to obtain the Veteran’s outstanding treatment records.
As to the Veteran’s hypertension claim, the Veteran’s March 2013 VA examination showed elevated blood pressure readings.  While this matter is on remand, VA medical opinion should be obtained regarding whether the Veteran has a current diagnosis of hypertension within the claims period and, if so, whether his hypertension is related to service.
While the record contains a May 2014 VA examination regarding the Veteran’s service-connected lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The examination report does not contain range of motion measurements for the Veteran’s right ankle (the opposite joint) or passive range of motion measurements.  Accordingly, remand is appropriate to obtain a new VA examination to address the current nature and severity of the Veteran’s disability.  
In addition, when readjudicating the Veteran’s claim for a higher rating for service-connected lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion, the Regional Office should consider whether a higher rating is warranted under Diagnostic Code 7121.
As to the Veteran’s TDIU claim, the June 2015 private psychiatric examiner noted that the Veteran reported that he was currently working part-time at Lowe’s Home Improvement.  The Veteran’s April 2014 and July 2014 TDIU applications indicate that he was not working at the time.  Accordingly, remand is appropriate for an updated TDIU application.  The Veteran should be offered the opportunity to submit information regarding the nature, hours, and income relating to any employment during the claims period.  
Moreover, with the above grant of service connection for major depressive disorder, the Veteran’s service-connected disability picture has changed.  The issue of TDIU is intertwined with the rating assigned to the Veteran’s now service-connected major depressive disorder.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
The matters are REMANDED for the following action:
1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, to include any additional treatment records from Dr. Jabbour and University of North Carolina Hospitals.
2. Obtain outstanding federal treatment records, including any additional treatment records from Womack Army Medical Center.
3. Request clarification from the Veteran regarding the nature, hours, and income relating to any employment during the claims period.  Provide a VA Form 21-8940 to the Veteran and ask him to provide information for any part of the appeal period (beginning October 2013) for which he seeks TDIU.  Ask the Veteran to provide IRS tax returns for such period along with a statement that the copy is an exact duplicate of the return filed with the IRS.  Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA.  Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above.  He should submit tax records for the years he claims he is unable to obtain and maintain substantially gainful employment.  
4. After obtaining any outstanding records, ask the appropriate (hypertension) examiner to review the Veteran’s file.  The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner.  
The examiner should opine as to whether the Veteran has had a hypertension disability at any time during the claim period (from January 2015 to the present).
If so, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the hypertension: (a) had an onset in service; (b) manifested to a compensable degree within a year of separation from service (by October 2014); or (c) is otherwise related to an in-service injury, event, or disease.
The examiner should consider all medical and lay evidence of record, including the March 2013 VA examination report.
A complete rationale should be given for all opinions and conclusions expressed.
5. After outstanding records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion disability.  The examiner should review the Veteran’s claims file.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.
The examiner should describe all manifestations of the Veteran’s chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion disability, including under all applicable rating criteria.
The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  Range of motion testing of the right ankle should also be accomplished, for comparison purposes.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly so state and explain why.
The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time.  If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided.
To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living.  
A complete rationale must be provided for all opinions offered.  If an opinion cannot be offered without resort to mere speculation, the examiner should fully discuss why this is the case.
6. After completing the above, and any other development deemed appropriate, the Veteran’s claims should be readjudicated, including consideration of the Veteran’s claim for a higher rating for his chronic lymphedema with recurrent cellulitis and stasis dermatitis with residuals of left ankle limitation of motion disability under Diagnostic Code 7121 and any other applicable rating criteria.  If any relief sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Purcell, Associate Counsel