Citation Nr: 20021324 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-49 354 DATE: March 25, 2020 ORDER Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for impotence is remanded. FINDING OF FACT The Veteran’s major depressive disorder was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to January 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA). In September 2019 correspondence, the Veteran’s representative elected to submit argument in lieu of a Board hearing. As a result, the Board considers the Veteran’s hearing request withdrawn and will proceed with adjudication. Although the Agency of Original Jurisdiction (AOJ) adjudicated two separate issues of entitlement to service connection for depressive disorder and posttraumatic stress disorder (PTSD), both of which were appealed to the Board, in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issues into one issue encompassing any acquired psychological disorder, to include depressive disorder and PTSD. Entitlement to service connection for an acquired psychological disorder, to include depressive disorder and PTSD. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) reflect psychological symptoms and a diagnosis of depression during service. See December 1975 STRs. A November 2013 VA examiner diagnosed depressive disorder, not otherwise specified, but opined she would have to resort to speculation to opine about whether his condition is related to service due to the number of years that elapsed since service. See November 2013 VA examination. This opinion is inadequate because it does not consider the Veteran’s report of continued symptoms; thus, it is given no probative weight. The Veteran underwent a private evaluation, wherein the examiner diagnosed major depressive disorder. The evaluator opined that the Veteran’s disorder began during service and continued since that time, due to evidence of recurrent depressive symptoms. See January 2020 private evaluation. This opinion is given significant probative weight and as a result the evidence reflects that the Veteran’s major depressive disorder was incurred during service. Accordingly, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran’s STRs reflect a complaint of lower back pain that was assessed to be a muscle spasm. See September 1975 STRs. A November 2013 VA examiner diagnosed degenerative joint disease and opined it was less likely than not related to service because there was only one complaint during service and no medical evidence of a chronic or ongoing problem during and after service. This opinion is inadequate because it does not consider the Veteran’s report of consistent back pain, as stated in December 2019 correspondence from a private physician. In December 2019, a private physician opined that the Veteran’s lumbar spine degenerative joint disease began in service. However, the physician did not provide a rationale; rather, he merely stated a history of the Veteran’s condition. As a result, the opinion is inadequate. If the Veteran wishes to obtain an addendum opinion with an adequate rationale from the physician, he is welcome to do so. Because there are no adequate opinions of record, remand for a VA examination is necessary. 2. Entitlement to service connection for a bilateral foot disability is remanded. The December 2019 private physician opined that the Veteran’s chronic foot pain with difficulty walking began in service. The Veteran had reported to the physician that his feet hurt in service due to ill-fitting boots. See December 2019 correspondence. Once again, the physician’s opinion does not have an adequate rationale because he merely stated a history of the Veteran’s condition. If the Veteran wishes to obtain an addendum opinion with an adequate rationale from the physician, he is welcome to do so. Because there are medical questions outstanding, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for impotence is remanded. In November 2013, the Veteran submitted a private medical release for Dr. S. Shapiro. See November 2013 VA Form 21-4142. It appears the AOJ made only one attempt to obtain those records, which is not a reasonable effort to fulfill its duty to assist. See 38 C.F.R. § 3.159(c)(1). As a result, remand is necessary to attempt to obtain such records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from November 2019 to the present. 2. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received, to include from Dr. S. Shapiro. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 3. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from December 2012). (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s report of continued back pain since service and the December 2019 private physician opinion. 4. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any bilateral foot disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all bilateral foot disabilities present during the appeal period (from December 2012). (b.) For each foot disability diagnosed or for foot pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s report of continued foot pain since service and the December 2019 private physician opinion. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, Associate Counsel 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.