Citation Nr: 18158641 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-33 774 DATE: December 17, 2018 ORDER Entitlement to service connection for a major depressive disorder and an anxiety disorder as secondary to service-connected disability is granted. REMANDED Entitlement to service connection for a right elbow condition is remanded. Entitlement to an initial, compensable rating for a right wrist disorder is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the bilateral knees is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s major depressive disorder and anxiety disorder were caused by chronic pain associated with his service-connected bilateral knee and right wrist disorders. CONCLUSION OF LAW The criteria for service connection for a major depressive disorder and an anxiety disorder as secondary to service-connected disability are satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1992 to April 1996 and from April 2009 to August 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 and a January 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 1. Entitlement to service connection for a major depressive disorder and an anxiety disorder as secondary to service-connected disability is granted. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the of the nonservice-connected disease, will be service connected. § 3.310(b). Secondary service connection under § 3.310 entails "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has been diagnosed as having a major depressive disorder and an anxiety disorder. On VA examination in September 2014, the examiner listed chronic pain as a medical diagnosis relevant to understanding the management of the Veteran’s mental health disorder. In a January 2015 statement, the Veteran’s treating VA psychologist stated that given the chronic pain associated with his service-connected knee and wrist disorders, the Veteran had been experiencing depressive symptoms related to functional decline. He went on to state that it is not uncommon for those experiencing chronic pain, which impacts how they function physically, to experience some decline in mood as they face accommodating their lives and activities due to pain issues. Thus, resolving reasonable doubt in favor of the claim, the Board finds that the Veteran’s major depressive disorder and anxiety disorder were caused, at least in part, but chronic pain associated with his service-connected bilateral knee and right wrist disorders. As such, service connection is granted under the provisions of 38 C.F.R. § 3.310. See 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for a right elbow condition is remanded. 2. Entitlement to an initial, compensable rating for a right wrist disorder is remanded. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the bilateral knees is remanded. 4. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. 5. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. 6. Entitlement to a total disability based upon individual unemployability is remanded. Additional VA medical treatment records were added to the Veteran’s record in February 2018. This was subsequent to the most recent statement of the case (SOC) issued in June 2016. See SOC, dated June 27, 2016. Therefore, a remand is required for the issuance of a supplemental statement of the case (SSOC). The Veteran was last afforded a VA examination addressing the severity of his service-connected bilateral knee and right wrist disabilities in September 2014. In a June 2016 statement, the Veteran asserted that he believes his conditions have worsened due the distress he has encountered in his life. See June 2016 Statement in Support of Claim. Furthermore, additional VA treatment records show that the Veteran has had further treatment for his service-connected disabilities. See e.g. June 2016 Primary Care Note (reflecting the Veteran is undergoing physical therapy for his knee); January 2017 Surgical Orthopedic Consult (reflecting the Veteran is suffering from pain, instability, and weakness in the right wrist). Accordingly, given the suggestion that the Veteran’s disability picture may have changed, a new VA examination is warranted to assess the current level of severity of the Veteran’s service-connected bilateral knee and right wrist disabilities. See 38 C.F.R. § 3.327 (a) (2017) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); Olsen, 3 Vet. App. at 482; Proscelle v. Derwinski, 2 Vet. App. at 632; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board notes that the Veteran’s claim for a TDIU is inextricably intertwined with his increased rating claims for his bilateral knee and right wrist disabilities. 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 issues have been considered). As such, consideration of the claim for TDIU must be deferred pending the resolution of the increased rating claims for the bilateral knee and right wrist disabilities. Finally, the Veteran should be scheduled for VA examinations, as described below. The matters are REMANDED for the following action: 1. Make arrangements to obtain any outstanding VA treatment records dated from February 2018 forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination, to evaluate his right elbow condition. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. After reviewing the file, the examiner must render an opinion as to the following: (a) Identify all right elbow disorders found to be present. (b) If the examiner concludes that there is no underlying pathology to diagnose a right elbow disorder, he/she should identify all functional impairment associated with the Veteran’s right elbow symptoms (i.e., pain, decreased range of motion during flare-ups and over-use, etc.). See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (2018). If there is no functional impairment of the right elbow, the examiner should so state. (c) For any right elbow diagnosis and/or functional impairment of the right elbow, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service, to include the May 2010 notation of a swelling, redness and pain of the olecranon with a diagnosis of cellulitis and/or the May 2010 x-ray findings of mild soft tissue swelling posterior to the olecranon likely representing olecranon bursitis. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. Schedule the Veteran for appropriate VA examinations to assist in determining the nature and current level of severity of his service-connected bilateral knee condition and his right wrist condition. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner(s) in conjunction with the examinations. The examiner(s) must note in the examination reports that the evidence in the claims file has been reviewed. The examiner(s) should elicit a full history from the Veteran. The examinations should include any necessary diagnostic testing or evaluation, i.e. X-rays, MRI studies. All pertinent symptomatology should be reported in detail. In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joints in question and any paired joints. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and any additional relevant evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Provide the Veteran with an appropriate VA examination to evaluate the issue of entitlement to a TDIU. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of each of his service-connected disabilities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel