Citation Nr: 20028046 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-27 074 DATE: April 22, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a disability rating exceeding 10 percent for a left knee disability is remanded. Entitlement to a compensable disability rating for a disability of the mallet finger, right fifth digit is remanded. Entitlement to a compensable disability rating for hemorrhoids is remanded. Entitlement to a compensable disability rating for onychomycosis of the toenails is remanded. Entitlement to a disability rating exceeding 20 percent for a lumbar spine disability is remanded. FINDING OF FACT The evidence shows that the Veteran’s major depressive disorder has been aggravated by his service-connected disability of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for a mental disability are met. 38 U.S.C. §§ 1110, 1131, 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 September 1984 to September 1994. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2019 hearing. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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). In this case, the Veteran filed a claim for service connection for depression secondary to his lower spine disability. The records show A.M.W., MD, treated him for several years. Pertinent treatment records confirm the Veteran was diagnosed with major depressive disorder with recurrent major depressive episodes. See generally records from Kaiser Permanente received into the claims file in April 2019. In October 2013, VA received a letter from A.M.W., MD supporting the Veteran’s claim for service connection for a mental disability. A.M.W., MD found that while the Veteran’s depression is an independent illness, he believes that at times the severity of the Veteran’s depression is exacerbated by the persistence of the Veteran’s physical discomfort related to his service-connected back and knee conditions. The Board affords great probative value to the opinion of A.M.W., MD as it is supported by the credible statements of the Veteran about his worsening depression in the context of multiple service-connected disabilities involving significant pain. The Board finds no competent or compelling evidence contrary to a finding that the Veteran’s depression is aggravated by his service-connected back and knee disabilities. Accordingly, the Veteran’s claim is granted. REASONS FOR REMAND At the Veteran’s hearing, the Veteran and his representative noted that the Veteran has not received a VA examination of his rated disabilities on appeal for many years, and they requested VA obtain current examinations to assess the severity of the worsening conditions. Additionally, they noted that while the Veteran’s doctors found he currently suffers from GERD and reported relevant symptoms during his military service including Gulf War service, the Veteran has not been afforded an examination to date to determine whether the Veteran’s current disability is related to his service. On remand, the Agency of Original Jurisdiction (AOJ) should obtain all identified relevant outstanding records and afford the Veteran current examinations of his claimed conditions to assess their severity and determine if the Veteran’s GERD is related to his military service. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records including outstanding military personnel records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disabilities of the left knee, right fifth digit, hemorrhoids, onychomycosis of the toenails, and lumbar spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 3. After associating all outstanding records with the Veteran’s claims file, the AOJ should also afford the Veteran an examination with an appropriate examiner of the Veteran’s claimed gastroesophageal reflux disease. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner follows these directives: (a.) The VA examiner should identify all current disabilities associated with the Veteran’s stomach and esophagus. (b.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include documented reports of heartburn, chest pain, an upset stomach, and other complaints associated with the stomach or esophagus in the Veteran’s service records. The examiner should explain why or why not. The examiner should consider the Veteran’s statements about the onset of his relevant symptoms and continuity of symptomatology through the present. (c.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not worsened beyond normal progression (aggravated temporarily or permanently) by the Veteran’s service-connected disabilities to include his depression. (d.) In regard to all symptoms associated with the Veteran’s GERD or heartburn, the VA examiner should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the individual veteran’s circumstances rather than the illnesses as they are understood in the general public. (e.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.