Citation Nr: 20004838 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 19-07 915 DATE: January 22, 2020 ORDER Service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and persistent depressive disorder, is granted. Entitlement to service connection for a right hand nerve disorder (right hand disorder), to include as secondary to service-connected postoperative residuals of a right elbow fracture, is denied. REFERRED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised in an October 2019 VA Form 21-8940 and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. See also May 2016 statement by VA provider. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s acquired psychiatric disorder, to include generalized anxiety disorder and persistent depressive disorder, was incurred in service. 2. The Veteran’s right hand nerve disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, or secondary to service-connected postoperative residuals of a right elbow fracture. CONCLUSIONS OF LAW 1. The criteria for service connection for acquired psychiatric disorder, to include generalized anxiety disorder and persistent depressive disorder, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right hand nerve disorder, to include as secondary to service-connected postoperative residuals of a right elbow fracture, have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1980 to July 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Veteran’s claims of service connection for various acquired psychiatric disorder, to include anxiety and depression, which was previously considered as separate claims, has been combined as a single issue, as characterized above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (observing that when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). Such characterization best reflects the evidence of record and the Veteran’s claims. Service Connection Generally, to establish service connection, a claimant 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. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. Service connection for an acquired psychiatric disorder is granted. The Veteran contends that his anxiety and depressive disorder was caused or aggravated by his active duty service. See, e.g., October 2019 Appellate Brief. In the alternative, asserts that his anxiety and depressive disorder is due to his service-connected disabilities. Id. For the reasons set forth below, the Board finds that the evidence is in relative equipoise that the current acquired psychiatric disorder was incurred in service. Evidence weighing in favor of the Veteran’s claim includes an August 2019 by Dr. K.B., who opined that it is more likely than not that the Veteran developed symptoms of a generalized anxiety disorder and persistent depressive disorder during service. In this regard, Dr. K.B. outlined in-service stressors, including difficulty adjusting to military life, feeling very pressured, and being degraded and abused. The Board finds that the August 2019 opinion by Dr. K.B. is highly probative with respect to service connection for an acquired psychiatric disorder, and is adequately based on objective findings as shown by the record, and accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran’s history, and provided a rationale for the opinions given. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the August 2019 private opinion provides competent, credible, and probative evidence which shows that the current acquired psychiatric disorder was incurred in service. There is no contrary medical opinion of record. Evidence weighing against the Veteran’s claim includes service treatment records showing no treatment of, treatment for, or diagnosis of an acquired psychiatric disorder. A review of the record show that Veteran’s anxiety and depressive symptoms may also be attributed to circumstances outside of Veteran’s military service, such as the passing of his wife. See, e.g., April 2013 VA Treatment Record, December 2013 VA Treatment Record. For the reasons discussed above, and after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and persistent depressive disorder, is warranted as directly incurred in service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). 2. Service connection for a right hand disorder is denied. The Veteran has a current right hand disorder. At his September 2016 VA examination he was diagnosed with bilateral carpal tunnel syndrome. Thus, the remaining question is whether the current right hand disorder is related to service or a service-connected disability. Service treatment records show no complaints, diagnosis, or treatment related to a right hand disorder. During the June 1983 separation examination, there were no concerns indicated or injuries noted relating to Veteran’s right hand. This evidence weighs against a finding of chronic right hand nerve symptoms during service. While not dispositive, a right hand disorder is not shown by medical evidence until approximately October 2015, many years after the Veteran’s separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Regarding onset of symptoms related to a right hand disorder, post-service the Veteran reported a numbness and tingling in his hands in August 2009, and a cyst on his right hand in April 2015. This eventually led to an excision operation in October 2015. An electromyography (EMG) testing conducted in October 2015 revealed that Veteran had carpal tunnel syndrome in both hands. This evidence weighs against a finding that symptoms of a right hand nerve disorder were continuous since service separation, or that a right hand nerve disorder manifested to a compensable degree within one year of service separation. The Veteran presented for a VA examination in September 2016, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the right hand disorder is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service connected condition. In support of this conclusion, the examiner explained that Veteran’s symptoms are consistent with a right carpal tunnel syndrome, meaning that the problem is at the wrist and not the Veteran’s elbow. Furthermore, the examiner noted that Veteran’s recent EMG/NCV also is consistent with bilateral carpal tunnel (median nerve neuropathy) at the wrist and not an injury of the median nerve up in the forearm or elbow area. The Board finds the opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that he noticed weakness, numbness, and tingling from his hand that radiated to his forearm. See August 2009 and December 2013 VA Treatment Records. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., tingling or numbness of his hands; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of carpal tunnel syndrome because these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts that his right hand disorder is due to his active duty service, the Board finds that the evidence does not show any complaints, treatments, or diagnosis related to the Veteran’s right hand during Veteran’s military service. The incurrence of an injury, event, or disease during service is necessary to warrant direct service connection, and the evidence is against such finding. 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the above reasons, the preponderance of the evidence is against the claim and service connection under a direct, presumptive, or secondary theory of entitlement is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.