Citation Nr: 18158719 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-00 534 DATE: December 17, 2018 ORDER Entitlement service connection for depression, secondary to service-connected right knee and bilateral arm disabilities, is granted. REMANDED Entitlement to a disability rating greater than 10 percent for service-connected right elbow condition (tendonitis) is remanded. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities, is remanded. FINDING OF FACT The preponderance of the evidence of record reflects that the Veteran’s currently diagnosed major depressive disorder (MDD) is caused by his service-connected right knee and bilateral arm disabilities. CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U. S. Air Force from May 1968 to April 1972 and with the U. S. Army from November 1976 to February 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2016, the Veteran was scheduled for a decision review officer (DRO) hearing. However, in August 2016, the Veteran through his attorney canceled the hearing and did not request to reschedule. The hearing request has thus been withdrawn. 38 C.F.R. § 20.704 (e) (2018). Service connection for depression 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) (2018). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing before the aggravation. 38 C.F.R. § 3.310 (b) (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The first two elements of a secondary service connection claim are met in this case. The Veteran contends that his depression is caused by his service-connected right knee and bilateral arm disabilities. The Veteran was afforded a VA mental health disorders Disability Benefits Questionnaire (DBQ) in February 2015. The examiner noted that during a November 1993 Report of Medical History, the Veteran endorsed depression or excessive worry. He denied experiencing nervous trouble, frequent trouble sleeping or a period of unconsciousness. A handwritten note of record indicated that the Veteran drank a six-pack of beer every day. It was also noted that the Veteran completed five Depression Screenings of which the November 2010 and March 2012 were positive. The results from the screenings of April 2013 and October 2014 were negative. A December 2014 Social Work Psychosocial Assessment note indicated no mental health or substance abuse history needs. During the examination, the Veteran endorsed daily depressed mood, since 1988, with financial stress as the precipitating factor. The Veteran reported that he enjoyed making small repairs, while “listening” to horror movies in his workshop. He reported sleeping an average of “anywhere between 7 and 9” hours. He described his energy as “horrible” due to “osteoarthritis and tendinitis.” He denied suicidal or homicidal ideation, or any attempts to harm himself. The examiner noted no signs or symptoms of mania or hypomania or evidence of psychosis. The examiner concluded that the Veteran did not meet the DSM-5 criteria for a depressive disorder. In support of his claim, the Veteran provided a private medical opinion from J. M., Ph D. Dr. J. M., diagnosed the Veteran with a Major Depressive Disorder, due the pain and limitations from the various service-connected physical ailments. Dr. J. M. explained that the Veteran met the criteria for a Major Depressive Disorder, under DSM-5, because he exhibited depressed mood most of the day, nearly every day; markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day; insomnia or hypersomnia nearly every day; psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down; fatigue or loss of energy nearly every day; and diminished ability to think or concentrate, or indecisiveness, nearly every day. Further, he explained the symptoms thereof, caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In addressing whether the Veteran’s non-service-connected disabilities, including other orthopedic conditions, may have caused the Veteran’s depression, Dr. J. M. opined that the Veteran’s current depression is likely related in part to both the service-connected orthopedic condition and the nonservice-connected orthopedic conditions, all of which combined to cause the constant pain which is the cause of the Veteran’s depression. [Nonetheless,] there is no way, without resort to speculation, that any portion of the depression can be attributed to either the service-connected conditions or the nonservice-connected conditions. However, it is my opinion, which I hold to a very high degree, that the basic cause of the depression is the seventeen-year history of right knee pain in service, the failed surgery on that knee which resulted in the return of his chronic knee pain and the pain associated with his bilateral arm condition. From my review of the medical records, the nonservice-connected conditions are relatively minor conditions which, by themselves, would not be disabling and would not have resulted in the chronic pain condition which the Veteran now suffers from. Based on the evidence presented above, the Board finds that the nexus element of a secondary service connection claim is satisfied. Wallin, 11 Vet. App. at 512 (1998). The medical opinion provided by Dr. J. M. is most probative in such a finding. Dr. J. M. acknowledged a review of the claims file and provided a thorough supporting rationale for the diagnosis and conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the preponderance of the probative evidence of record weighs in favor of the claim for service connection for depression secondary to the Veteran’s service-connected orthopedic conditions. Therefore, service connection must be granted. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND 1. Entitlement to a disability rating greater than 10 percent for service-connected right elbow condition (tendonitis) is remanded The Veteran’s last DBQ addressing his elbow condition was conducted in May 2013, and VA clinical records do not show a current range of motion of pronation of the right elbow. A private medical record from August 2016 appears to show a change in range of motion measurements. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). VA’s duty to assist is triggered when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Therefore, a new examination is warranted in this case, to determine the current severity of the Veteran’s right elbow disability. Additionally, in a May 2018 statement, the Veteran’s attorney asserted that flare-ups must be considered by the VA examiner. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities, is remanded Regarding the claim for entitlement to a TDIU, the matter of entitlement to an increased disability rating greater than of 10 percent for a right arm condition, may have a substantial effect on the merits of the claim. Therefore, as the claim for TDIU is inextricably intertwined with the increased rating claim and the grant yet to be implemented for an award herein, it must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Additionally, the rating the AOJ assigns when implementing the grant of service connection for the Veteran’s psychiatric disorder may result in the criteria for consideration of a schedular TDIU being met. 38 C.F.R. § 4.16(a). Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of his service-connected right elbow disability. All pertinent symptomatology and findings must be reported in detail. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is advised that it is not adequate to state that an opinion regarding flare-ups may not be provided solely because the examination is not being conducted during a flare-up. 2. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel