Citation Nr: 19126554 Decision Date: 04/09/19 Archive Date: 04/06/19 DOCKET NO. 17-50 887 DATE: April 9, 2019 ORDER New and material evidence having been received; the claim of entitlement to service connection for adjustment disorder with depressed mood is reopened. Entitlement to service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The claim for service connection for adjustment disorder with depressed mood was denied in an unappealed March 2010 rating decision. 2. Evidence submitted since the March 2010 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for adjustment disorder with depressed mood. 3. The competent medical and other evidence of record reflects it is at least as likely as not the Veteran’s acquired psychiatric disorder is secondary to his service-connected disabilities. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied entitlement to service connection for adjustment disorder with depressed mood is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the March 2010 rating decision and the requirements to reopen the claim of entitlement to service connection for adjustment disorder with depressed mood have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to April 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a March 2010 rating decision, the RO denied the claim of entitlement to service connection for adjustment disorder with depressed mood associated with residuals, lumbar spine injury. The denial was based on the determination that the claimed disability was not secondary to any service-connected disabilities. See Rating Decision-Codesheet, February 2, 2018. The Veteran did not submit a notice of disagreement with the March 2010 rating decision. No new and material evidence was received by VA within one year of the issuance of the March 2010 rating decision. As such, the March 2010 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). Since the final March 2010 RO decision, in April 2014, the Veteran submitted a medical opinion from a private physician Dr. J.L.D. who had been treating the Veteran for chronic pain problems and depression and anxiety for many years. See Medical Treatment Record- Non-Government Facility, April 28, 2014. The submitted document shows that the Veteran was noted to be depressed, and that his depression stemmed from chronic pain associated with his service-connected disabilities. This evidence is new and material evidence because it was not of the record at the time of the final RO decision in March 2010, and indicates the Veteran has a diagnosis of adjustment disorder with depressed mood that may be related to his service-connected disabilities. As such, new and material evidence having been submitted, the claim of entitlement to service connection for adjustment disorder with depressed mood is reopened. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Facts and Analysis The Veteran contends that his claimed disability is secondary to his service-connected disabilities. The Veteran is service connected for coronary artery disease, the residuals of a lumbar spine injury, the residuals of a right shoulder injury, postoperative residuals of medial malleolus right ankle with hip grafting, sinusitis, and hearing loss. The Veteran was initially diagnosed with major depressive disorder, recurrent type, with anxiety features, in October 2009. See Third Party Correspondence, October 14, 2009. In diagnosing him, the private clinician noted that the Veteran’s depression appeared to be a typical multicausal phenomenon. The clinician further noted that the Veteran had low back pain since 1979, and that research suggests that people that suffer from chronic pain often have major depressive disorders that occur secondary to the pain. The clinician further suggested that coping with the chronic pain throughout the 1980s and 1990s caused the Veteran to develop significant depressive symptoms. In August 2016 the Veteran was afforded a VA mental disorders examination. See C&P Exam, August 22, 2016. The examiner opined that the Veteran’s symptoms did not meet the diagnostic criteria for any mental disorder related to his service-connected disabilities. In providing an opinion, however, the examiner did not provide a rationale to support his conclusion. In November 2017, the Veteran submitted a positive private medical opinion. In a September 2017 statement, psychologist J.R.M. noted that he saw the Veteran for a 2.5-hour clinical interview in July 2017, as well as reviewed his entire case file. See Correspondence, November 30, 2017. During the interview, the Veteran reported symptoms of pain from his shoulder and back injuries, stress from difficulties in his life, depressed mood, chronic sleep disturbance, and posttraumatic stress-related symptoms. He also noted other relevant events and stressors, including service duty that included having to recover bodies and clean up debris stemming from a plane crash at an air force base, as well as the passing of his second wife. Regarding his malaise in general and his depressed mood, the Veteran reported that over the years he has become progressively less able to tolerate the chronic pain and has relied upon pain medication to help cope for many years, but the pain has gradually increased in duration and intensity. Regarding his chronic pain, the Veteran reported that such was more manageable at first but has gradually intensified over the years. He reported using hydrocodone in the military to function, as well as trying other medications, such as tramadol and gabapentin, neither of which helped him any more than the hydrocodone. He reported being placed on antidepressants following his second wife’s death. The Veteran additionally reported that his pain symptoms are now much worse than they were initially, and as the severity of the pain increased, so did his depressive symptoms. The Veteran further reported feeling worthless, as well as an inability to function comfortably in daily life, or deal with his pain without medication. He also reported a lack of desire to engage in previously enjoyable activities, as well as being too discouraged and preoccupied mentally to engage in any kind of productive activity. J.R.M. opined that based on the clinical interview, the information in the Veteran’s records, and other clinical information reviewed, it was more likely than not that the Veteran’s depressive disorder was the causal outcome of his chronic pain. Specifically, he noted that in meeting the DSM-5 criteria, the Veteran’s depressive symptoms are consistent with major depressive disorder and persistent depressive disorder. In supporting his opinion, J.R.M. noted that it is a settled science that chronic pain leads to/causes depression. Further, that chronic pain leading to/causing depression, represents a common, generally understood pattern of the relationship between physical illness (chronic pain) and mental health symptoms (clinical depression). Further supporting his opinion, J.R.M. noted that according to the Spine-Health Clinic, depression is by far the most common emotion associated with chronic back pain, and that this type of depression is called major depression or clinical depression. J.R.M. further noted that on a purely objective level, physical pain and depression occur independently and there may be instances when they are comorbid, but the pain is not necessarily the cause of the depression. In the Veteran’s case, however, J.R.M. noted that the pattern of his injury and his long-term reaction to it are entirely consistent with a finding that his chronic pain is the cause of his depression. The Board finds the private medical opinion J.R.M. to be probative, as it was based on a thorough review of the Veteran’s medical records, evaluation of the Veteran, and cites to relevant medical principles. The Board has considered the Veteran’s August 2016 VA examination but affords it less probative value, as the VA examiner did not provide a clear rationale for his conclusion. Upon review of the record, the Board finds the evidence is in relative equipoise that he has a psychiatric disorder that is secondary to his service-connected disabilities, namely his back and right shoulder. Accordingly, the Board finds that service connection for a psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Onyeozili, Law Clerk