Citation Nr: 20063866 Decision Date: 09/30/20 Archive Date: 09/30/20 DOCKET NO. 11-17 359 DATE: September 30, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to pain caused by the Veteran’s service-connected disabilities, is denied. REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine is remanded. FINDING OF FACT 1. The preponderance of the evidence is against a finding that the Veteran experienced an in-service stressor which is causally related to his current diagnosis of depression. 2. A November 2019 VA addendum opinion indicates that the Veteran’s depressive disorder is less likely than not proximately due to or aggravated beyond natural progression by his service-connected disabilities, including the pain and functional impairments results from his DJD/DD of his lumbar spine because there is not a pattern located in the medical treatment record of a mood disorder directly attributable to his service-connected conditions. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 105 (a), 1110, 1131, 5107; 38 C.F.R. §§ 3.1 (n), 3.301(d), 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1981 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran requested a personal hearing before the Board in June 2011 and June 2014. In May 2017, however, once the hearing was scheduled, he withdrew his request in writing. Therefore, the Board proceeds with the appeal. 38 C.F.R. § 20.704(e). These matters were before the Board in November 2017 and March 2019 and were remanded for further development. Service connection for an acquired psychiatric disorder to include on a secondary basis is denied. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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 disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Factual Background The Veteran reported at a November 2008 VA treatment that he reexperienced the past trauma of being raped at gunpoint by a fellow member of the military for being a homosexual. The Veteran stated that if he sees or hears someone who reminds him of the perpetrator, he will become hypervigilant and sometimes have a panic attack. The physician indicated that the Veteran has a diagnosis of depression. The Veteran reported in a September 2013 correspondence that he was assaulted by a lover during service in the military barracks in July 1982. The Veteran did not mention that he was experienced sexual abuse or that his attacker wielded a weapon. The Veteran stated that he did not go to the emergency room afterward. The Veteran submitted several letters signed by different people explaining that the Veteran was attacked by a soldier in July 1982 while he was home and not on the military barracks. The letters also detailed that the Veteran attempted suicide in March 1985 when he saw someone who looked like the soldier who attacked him. The Veteran reported in a March 2014 letter that he was assaulted by a fellow servicemember in June 1982 at the servicemember’s home. The Veteran wrote in the letter that he went to the emergency room after the assault. The Veteran submitted two buddy statements; one from his brother and the other from his superior officer. The letters explain that the Veteran told them that he was assaulted off-base in July 1982 by a fellow servicemember for being gay. The letters also explain that the Veteran went to the Noble Army Hospital after the attack. The Veteran was provided a VA examination in September 2018 during which he reported that after serving in 1988, he was accosted and raped at gunpoint in the boiler room of an apartment complex. The conducting physician explained that he reviewed the Veteran’s records of his mental health history. The physician indicated that the Veteran reported that during a November 2008 visit with a psychiatrist, he reported being raped at gunpoint by a fellow member of the military for being gay. The physician indicated that the Veteran reported at a December 2008 treatment that he was having nightmares and flashbacks about being “gay bashed while in the military” and when he was raped after getting out of the military. The physician also indicated that the Veteran reported at a March 2011 psychiatric treatment that he was on the verge of shooting himself in 1985, after service, when he found out his boyfriend ended his relationship with him. The conducting physician also indicated that the Veteran experienced multiple postmilitary stressful events that have significantly contributed to his depressive condition including an assault in 2010, the loss of relatives and significant damage to his home caused by a tornado. The Veteran’s service treatment records are silent for any reports of an assault or injuries consistent with the Veteran’s reports. In compliance with the March 2019 Board remand instructions, a November 2019 addendum opinion was obtained regarding whether the Veteran’s depressive disorder was causally related to his service-connected disabilities, including the pain and functional impairments resulting from his DJD/DDD of the lumbar spine. A VA clinical psychologist opined that it was less likely than not that the Veteran’s diagnosis of unspecified depressive disorder with anxious distress is considered less likely than not proximately due to or aggravated beyond natural progression by his service-connected disabilities. As a rationale, the psychologist explained that there was not a pattern located in the medical history record of a mood disorder directly attributable to the Veteran’s service-connected condition. Analysis Direct service connection The Board is required to evaluate supporting evidence, including all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Board has assessed the credibility and weight of all the evidence to determine its probative value, accounting for the evidence which it finds persuasive or unpersuasive, and providing the reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992). After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran’s acquired mental health disorder is causally related to his service. The Board finds that the Veteran has provided several inconsistent details regarding his in-service stressor. At the November 2008 treatment, the Veteran reported that he was raped at gunpoint during service because of his sexuality but later reported at the September 2018 VA examination that he was raped at gunpoint in a boiler room after getting out of the service. The Veteran reported during the September 2013 correspondence that he was attacked on-base but reported in a March 2014 letter that he was assaulted in the fellow servicemember’s house. The Veteran also reported in the September 2013 correspondence that he did not visit the emergency room after the assault but reported in the March 2014 letter that he did visit the emergency room. The Veteran’s inconsistent statements about in-service stressor and the lack of evidence of an assault in the service treatment records, compel the Board to find that the Veteran’s statements about his assault are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). Here, Veteran is attempting to recollect events that occurred during a stressful period of his life and the Board is forced to conclude that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them significant probative weight. Id. As a result, the Board finds that an in-service injury or disability has not been established and that service connection for an acquired mental disorder must be denied. Secondary service connection The Board also finds that the preponderance of the evidence is against a finding that the Veteran’s depressive disorder is causally related to his service-connected disabilities on a secondary basis. The Board assigns probative value to the November 2019 VA psychologist’s opinion because they indicated they reviewed the claims file and supported their opinion with a rationale. The Board notes that the Veteran has not attributed his mood disorder to the pain from his service-connected disabilities but rather from his reported in-service assault and loss of family members. Accordingly, the Board finds that the service connection for an acquired mental disorder on a secondary basis must be denied. REASONS FOR REMAND 1. A rating in excess of 10 percent for chondromalacia patella of the bilateral knees is remanded. 2. A rating in excess of 20 percent for DJD and DDD of the lumbar spine is remanded. While the Board sincerely regrets the additional delay, further development of the record is necessary to comply with VA’s duty to assist the Veteran in the development of facts pertinent to his claims. Where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding strictly the Veteran’s lumbar spine disability, the March 2019 Board remand instructed a VA examiner to perform the following: (1) opine whether the examination was taking place during a period of flare-up of the lumbar spine and if not, (2) ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up and/or after repeated use over time. (3) Based on the history provided by the Veteran and the other evidence of record, the examiner should then provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (4) If the examiner cannot estimate the degrees of additional range of motion loss without resorting to speculation, the examiner should 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). At the November 2019 VA examination, the conducting physician failed to address whether the examination was being conducted during a flare-up. The physician also failed to ask the Veteran to describe the flare-ups that he experiences. Finally, the physician failed to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. Rather the physician simply reported that the Veteran’s back range of motion was not tested due to inability to tolerate due to pain as well as the Veteran reporting that he could not stand unassisted. Regarding both the Veteran’s bilateral knee disability and his lumbar spine disability, the March 2019 Board remand instructed a VA examiner to explain as much as reasonably possible regarding where the Veteran’s need for a walker originates, how the Veteran’s range of motion would be impacted without the use of a walker, and whether the need for a walker places the Veteran in such a state as to be analogous to ankylosis of the lumbar spine or either knee, and if so whether that be favorable (fixation in a neutral position) or unfavorable ankylosis. At the November 2019 VA examination, while the examiner opined that the Veteran’s need for a walker originates from his back and bilateral knee disabilities, he failed to opine how the Veteran’s range of motion would be impacted without the use of a walker. Furthermore, the Veteran failed to opine as to whether the need for a walker places the Veteran in such a state as to be analogous to ankylosis of the lumbar spine or either knee, and if so whether that be favorable or unfavorable ankylosis. Accordingly, another remand is required to comply with the prior remand directives. Id. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination of his service-connected bilateral knee and lower back disabilities. a). For the lumbar spine disability, the examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up and/or after repeated use over time. Based on the history provided by the Veteran and the other evidence of record, the examiner should then provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss without resorting to speculation, the examiner should 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). b). For both the bilateral knee and lumbar spine disabilities, the examiner is also asked to explain as much as reasonably possible how the Veteran’s range of motion would be impacted without the use of a walker, and whether the need for a walker places the Veteran in such a state as to be analogous to ankylosis of the lumbar spine or either knee, and if so whether that be favorable (fixation in a neutral position) or unfavorable ankylosis. (Continued on the next page)   A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in clarification being requested). BRANDON A. WILLIAMS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus, 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.