Citation Nr: 21004628 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-34 094 DATE: January 27, 2021 ORDER Service connection for a disability manifested by memory loss is denied. Service connection for an acquired psychiatric disorder is granted. REMANDED A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from March 1970 to May 1971. 2. A chronic memory loss disorder has not been shown. 3. The Veteran’s acquired psychiatric disorder, variously diagnosed as a major depressive disorder (MDD), posttraumatic stress disorder (PTSD), and an adjustment disorder, has been aggravated by his service-connected left knee disability. CONCLUSIONS OF LAW 1. A disability manifested by memory loss was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2020). 2. An acquired psychiatric disorder is proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103A, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2018, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Memory Loss The Veteran asserts that he has memory loss which is due to service. Alternatively, he suggests that his memory loss disorder is due to negligent treatment by VA for hepatitis C. However, in order to grant service connection, the evidence must first demonstrate the existence of the claimed disability. Here, the evidence includes the Veteran’s medical history, to include medical records from VA and private treatment providers, detailing the treatment for many other ailments. The treatment providers routinely listed the Veteran’s ongoing health concerns; however, no mention of memory loss was ever made. In this regard, the Board acknowledges that treatment records sporadically refer to complaints of short term memory loss or trouble remembering details; however, at no point was a chronic disorder diagnosed regarding memory loss by any treating examiner. Service connection may not be granted for a diagnosis of a disability by history. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Accordingly, the medical evidence does not support the appeal as a current disorder manifested by memory loss has not been shown. Acquired Psychiatric Disorder The Veteran has asserted that he has an acquired psychiatric disorder which is caused, or aggravated beyond its natural progression by, his service-connected left knee disorder. Alternatively, he suggests it was due to his active duty. As to a current diagnosis, the medical record shows diagnoses of MDD, adjustment disorder, and PTSD. While the diagnosis of PTSD is in controversy, at least one health care provider has diagnosed him with it. Thus, the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) are silent to any complaints or diagnoses of a mental health disorder. While the Veteran asserted that he experienced a personal assault while on active duty, he did not provide any additional information in an attempt to verify this stressor after being notified of the necessary steps. Thus, an in-service stressor has not been verified, in-service incurrence is not shown, and the medical evidence does not support direct service connection. With regard to secondary service connection, the Veteran has been diagnosed with various psychiatric disorders and has been service connected for his left knee disorder since June 2006. Thus, the first and second elements of secondary service connection are met. As to a nexus between the current psychiatric disorder and the service connected left knee disability, the medical evidence weighs both in favor of and against the appeal. Evidence in support of the appeal consists of two private disability benefits questionnaires (DBQs) with accompanying etiological opinions. Specifically, in October 2014, Dr. H.G. opined that it was at least as likely as not that the Veteran’s left knee disorder aggravated his MDD. The clinician reasoned that his left knee musculoskeletal pain manifested as a depressive disorder. The clinician referred to a body of literature detailing the connection between medical issues and psychiatric disorders, which were very similar to the complaints noted by the Veteran. The clinician noted that individuals with medical issues and depressive disorders became disabled due to the holistic effect of medical and psychiatric disturbances. The clinician noted that the Veteran struggled a great deal with his left knee disorder and referred to the October 2013 VA knee examination where it was reported that the left knee flare-ups impacted the function of his knee including making any movement and walking harder. The examiner also referred to the Veteran’s statement that he felt “crippled” by the end of the day, and that the examining provider noted that the Veteran experienced functional loss on repetitive use and pain. In September 2020, a second clinician, Dr. K.G. provided a DBQ with a DSM-IV diagnosis of MDD with anxiety. The clinician specifically outlined the many symptoms described by the Veteran upon which she based her diagnosis. The clinician noted that the Veteran’s deteriorating knee disorder and mobility problems had resulted in a significantly lower quality of life and limited his choices. The clinician opined that this aggravated the Veteran’s MDD. The clinician referred to the left knee treatment which appeared in the medical records, as well as prior mental health examinations, and referred to various medical literature indicating a relationship between medical disorders and mental health. Specifically, the clinician referred to literature examining the relationship between chronic pain and depressive/anxiety symptoms. She noted that chronic pain and depression may share a common pathophysiology such as deficiencies in serotonin and excessive production of cortisol. She noted that pain was actually predictive of depression. These opinions weigh in support of the appeal. Evidence tending to weigh against the appeal consists of VA examinations in March 2016 and February 2020. In March 2016, the VA examiner found that the Veteran did not have depression or PTSD, but that he had adjustment disorder instead, which was less likely than not related to service. However, no opinion was rendered regarding secondary service connection. In a February 2020 VA examination, the examiner diagnosed an anxiety disorder; however, the examiner opined it was less likely than not related to or aggravated by a left knee disability. The examiner reasoned that that there was not sufficient and clear evidence in the medical record which would link any mental health diagnosis to the service-connected left knee disorder. The examiner noted that the Veteran did not report symptoms meeting the criteria for a mental condition related to this disability when queried. The examiner was unable to give an aggravation opinion citing that there was not sufficient evidence to establish the presence of a mental disorder prior to or following the service-connected left knee disability. After a consideration of the totality of the evidence, the weight of the evidence supports a finding that the Veteran’s left knee disability caused or aggravated his psychiatric disorder. Greater probative weight is afforded to the October 2014 and September 2020 private examinations because they were the result of complete examinations of the Veteran, a thorough review of his medical history, and a consideration of both his and his wife’s statements. Additionally, there is no evidence that any relevant fact was misstated or improperly relied upon. While there is a VA opinion which contradicts these findings, the Board finds that the March 2016 examiner did not address the secondary issue and the February 2020 examiner was essentially unable to provide an opinion due to lack of evidence. Accordingly, and granting the benefit of the doubt to the Veteran, the Board finds that a medical nexus between the Veteran’s psychiatric disorder and his service-connected left knee disability is met. Thus, the appeal is granted on a secondary basis. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In light of the partial grant of benefits contained in this decision, the Veteran’s TDIU appeal must be readjudicated so that the full scope of his service-connected disabilities may be considered in assessing his employability. Accordingly, a remand of this issue is now warranted. The matter is REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. After implementing the Board’s decision, and after accomplishing any additional notification and/or development deemed warranted for the matter of entitlement to a TDIU, the RO should review the claims file and conduct any development deemed appropriate as to whether the Veteran’s service-connected disabilities render him unemployable. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.