Citation Nr: 21001086 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-21 499 DATE: January 7, 2021 ORDER Service connection for an acquired psychiatric disorder (depression), to include as secondary to service-connected disabilities, is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease is remanded. Entitlement to service connection for a thyroid disorder is remanded. Entitlement to service connection for left deep vein thrombosis is remanded. Entitlement to service connection for right deep vein thrombosis is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for renal carcinoma is remanded. FINDING OF FACT The competent and probative evidence tends to show the Veteran’s current persistent depressive disorders are proximately due to his service-connected lumbar disability pain. CONCLUSION OF LAW The criteria for service connection for persistent depressive disorder, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from January 1969 to January 1973 and from May 1974 to January 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matter were previously before the Board in June 2018 when they were remanded for additional development. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with examinations, the RO attempted to obtain records from the Mayaguez Outpatient Clinic, and attempts to verify ionizing radiation were made. In a July 2020 rating decision, the RO granted service connection for restrictive lung disease with pneumonia and bronchitis. As this grant represents a full grant of the benefit sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted 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. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression. The Veteran asserts service connection for an acquired psychiatric disorder. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of persistent depressive disorder, and that the evidence shows that it is secondary to his service-connected back disability. 38 U.S.C. §§ 1110, 5107(b). The Veteran has a diagnosis of dysthymia (peristent depressive disorder), to include as reported in the July 2018 examination by a psychiatrist. As such, the first element of service connection has been met. The July 2018 examiner reported that while there is not literature of a direct consequence between the Veteran’s service-connected lumbar disability and his depressive condition, a chronic medical condition that causes chronic pain can increase the risk, exacerbate, or aggravate a depressive disorder. The examiner reported that there were no psychiatric findings prior to or during the Veteran’s military service. However, he has had chronic pain since 1974 and his back disorder impacts his ability to work. As such, the examiner concluded that the Veteran’s depressive disorder was proximately due to or aggravated by his chronic pain from his service-connected lumbar disability. The Board finds this examination to have high probative value. The examiner performed an in-person examination, supported the conclusions with appropriate rationale, and thoroughly reviewed the Veteran’s medical record. An additional opinion was obtained in June 2019. However, the examiner provided a negative opinion. The examiner stated that at the time of the examination, the Veteran did not meet the criteria of full major depression disorder and that any symptoms were related to other psychosocial stressors. However, the examiner also acknowledged chronic pain may increase the risk of a depressive disorder. The Board finds this examination to have less probative value than the 2018 opinion. While there was also an in-person examination, her opinions have less rationale and are more conclusory. Additionally, the examiner acknowledges that chronic pain may increase the risk for developing a depressive disorder. Moreover, this examiner did not explain why the Veteran did not meet the criteria for a depressive disorder at the examination or why she disagreed with other findings reporting depression. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that his persistent depressive disorder is proximately due to his service-connected lumbar disability and the chronic pain. 38 U.S.C. § 5107(b). The Board acknowledges the negative VA opinion, but finds the 2018 opinion to have the most probative value as shown above. Therefore, the Board finds that secondary service connection for persistent depressive disorders is warranted. 38 C.F.R. § 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The Veteran underwent an examination for his claim for fibromyalgia in June 2019. The examiner found that the Veteran did not have and had not had fibromyalgia. It was reported that he had fibromyalgia as part of his history. However, the examiner insufficiently explained why the Veteran did not have fibromyalgia when it has been reported in his medical treatment records to include during the period on appeal. His service treatment records show whole body aches in January 1975. As such, the Board finds that this 2019 VA examination is insufficient to address the question of entitlement to service connection for fibromyalgia as a relevant facts were not considered. Therefore, an additional development is necessary. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for rhinitis is remanded. 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to service connection for gastroesophageal reflux disease is remanded. 7. Entitlement to service connection for a thyroid disorder is remanded. The Veteran has diagnoses of knee arthralgia, allergic rhinitis, hypertension, GERD, and a thyroid nodule as reported in his VA treatment records. His service treatment records show a motorcycle-truck vehicle accident in September 1972. The Veteran asserts his lower extremity disabilities are due to the in-service accident. However, the Veteran has not been scheduled for examinations to assess the nature and etiology of any the above disabilities, and whether they are related to service, to include as secondary to his service-connected disabilities. As such, the Board finds that examinations are warranted as such would be useful for a full and fair adjudication of the issues. Indeed, VA has not obtained medical opinions as to whether the Veteran’s disabilities are related to service. 8. Entitlement to service connection for left deep vein thrombosis is remanded. 9. Entitlement to service connection for right deep vein thrombosis is remanded. 10. Entitlement to service connection for erectile dysfunction is remanded. The Veteran asserts service connection for left and right deep vein thrombosis and erectile dysfunction as secondary to his service-connected disabilities and the accompanying medication. A June 2019 examination provided negative nexus opinions for his claims for left and right deep vein thrombosis and erectile dysfunction. The examiner stated that his disabilities were not proximately due to or aggravated by his service-connected lumbar disability to include pain medication. The examiner also reported that his disabilities were not aggravated beyond the baseline as neither had been aggravated since their onset. While there is some probative value as to whether his disabilities were proximately due to or aggravated by his service-connected lumbar disability, the Veteran has now been granted service-connected for an acquired psychiatric disability. The Veteran has asserted that his disabilities are due to medications he takes for his service-connected disabilities. Additionally, the Board finds that these claims are intertwined with the above remanded service connection claims (bilateral knee disability, rhinitis, hypertension, GERD, and a thyroid disorder, to include medication taken for them) as they may be secondary to those health issues. See Harris v. Derwinksi, 1 Vet. App. 180, 183 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, these issues are deferred pending the receipt of additional evidence, as directed below. Therefore, the Board finds that an addendum opinion or examination if necessary is warranted to determine whether the Veteran’s bilateral deep vein thrombosis and erectile dysfunction are proximately due to or aggravated by any of his service-connected disabilities, to include medication. 11. Entitlement to service connection for renal carcinoma is remanded. The Veteran asserts service connection for renal carcinoma, to include as due to radiation. He has a diagnosis of renal carcinoma. As such, the first element of service connection is met. An October 2019 Memorandum determined that there was no external or internal occupational radiation exposure data for the Veteran. The RO determined that the Veteran was not exposed to radiation as reported in a September 2020 memorandum. The RO found there was insufficient information to refer the claim as the Veteran had not updated his Radiation Risk Activity Information Sheet. The Board acknowledges the Veteran had previously submitted this form in 2013; yet, there is limited value from the original form as many questions are answered with “N/A.” Additionally, the Veteran has not been scheduled for an examination to assess the nature and etiology of his renal carcinoma, and whether it is related to service, to include as secondary to his service-connected disabilities. As such, the Board finds that an examination is warranted as such would be useful for a full and fair adjudication of this issue to assist in determining whether the Veteran’s disability is related to service. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, obtain an opinion for the Veteran’s fibromyalgia using only a records review, if possible, due to the current national public health emergency. If it is not possible to obtain an evidence-supported opinion for the Veteran’s disability without an in-person examination, then schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability. -- Identify whether the Veteran has fibromyalgia to include conducting all tests and studies deemed appropriate. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding the history of his symptomatology, and undertake any indicated studies. If the examiner finds that the Veteran has not had fibromyalgia during any period on appeal (May 2012 onward), the examiner must fully explain why he or she disagrees with medical reports of fibromyalgia in the Veteran’s medical records. See 11/10/2016, CAPRI. The examiner is to review the Veteran’s records and address the following: (a.) Is it at least as likely as not (50 percent or greater probability) his fibromyalgia had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 3. After completing #1, regarding the Veteran’s bilateral knee disability, obtain an opinion or, if necessary, schedule the Veteran for an examination. -- Identify any bilateral knee disorders during the period on appeal (May 2012 onward). Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service, to an in-service motor vehicle accident? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 4. After completing #1, regarding the allergic rhinitis, obtain an opinion or, if necessary, schedule the Veteran for an examination. -- Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 5. After completing #1, regarding the Veteran’s hypertension, obtain an opinion or, if necessary, schedule the Veteran for an examination. --Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 6. After completing #1, regarding his GERD, obtain an opinion or, if necessary, schedule the Veteran for an examination. -- Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 7. After completing #1, regarding the thyroid disability, obtain an opinion or, if necessary, schedule the Veteran for an examination. -- Identify any thyroid disorders during the period on appeal (May 2012 onward). Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that his disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 8. After completing #1, regarding the Veteran’s bilateral deep vein thrombosis, obtain an opinion or, if necessary, schedule the Veteran for an examination. --Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include medication? 9. After completing #1, regarding the Veteran’s erectile dysfunction, obtain an opinion or, if necessary, schedule the Veteran for an examination. --Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include medication? 10. After completing #1, regarding the renal carcinoma, obtain an opinion or, if necessary, schedule the Veteran for an examination. --Then, address whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 11. Lastly, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (50 percent or greater probability) that any disability was either 1) proximately due to OR 2) aggravated by any now service-connected disability?   The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. **Inform EACH of the above examiners that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.