Citation Nr: 21004984 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-06 859 DATE: January 28, 2021 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to service connection for depressive disorder (DD) is granted. REMANDED 3. Entitlement to service connection for a left-shoulder condition, to include residuals from left-shoulder cellulitis, is remanded. FINDING OF FACT 1. The most probative evidence establishes that the Veteran was not diagnosed with PTSD under the criteria established in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) during any portion of the period on appeal. 2. The most probative evidence establishes that the Veteran was diagnosed with DD during the entire period on appeal. 3. The most probative evidence establishes that the Veteran’s DD is attributable to at least one of his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for service connection for DD have been met. 38 U.S.C. §§ 1110, 1131, 1116, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to August 1971. These matters come before the Board of Veterans’ Appeals (Board) on his appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) February 2013 rating decision that denied the Veteran service connection for an acquired psychiatric disorder, to include PTSD, and for his left-shoulder condition, to include residuals of left-shoulder cellulitis. In January 2019, the Veteran testified before the Board at a videoconference hearing, and a transcript of the hearing has been associated with the claims file. In April 2019, the Board issued a decision remanding the Veteran’s claims for further development. As to his psychiatric disorder, the Board pointed out that, under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), a claim for service connection for PTSD encompassed all other acquired psychiatric disabilities, and directed the RO to afford the Veteran an addendum VA examination so that a VA clinician would opine whether it was at least as likely as not that the Veteran’s acquired psychiatric disorder was attributable to his service-connected disabilities, especially given the January 2013 VA examiner’s assessment, which included an observation that the Veteran’s “adjustment disorder with depressed mood” was a result of his “significant health problems.” Following the remand, the RO associated the Veteran’s VA treatment records with the claims file. Notably, these records contained no references to PTSD. Rather, these records demonstrated that the Veteran had been diagnosed with DD since 2012, and his treating medical practitioners related the Veteran’s DD to his psychical disabilities. It is worth noting that the Veteran is service connected for ischemic heart disease, coronary artery disease post myocardial infarction, diabetes mellitus type II, bilateral peripheral neuropathy of upper extremities, bilateral peripheral neuropathy of lower extremities, bilateral sciatic nerve condition, bilateral femoral nerve condition, hypertension, hearing loss, eczema, and bodily scars. In fact, the Veteran’s treatment records demonstrate that the sole non-service-connected physical disability of which he complained and was treated has been his left shoulder condition, discussed in the Remand section of this Order. In July 2020, the Veteran was provided with a VA examination. The examiner found that the Veteran met some but not all of the PTSD criteria. The examiner, however, confirmed the Veteran’s DD diagnosis, and stated that his DD was caused by the deaths in his family and by his “multiple health problems” that were “significant.” However, upon making these findings, the July 2020 examiner did not opine on the causal connection between the Veteran’s DD and his physical disabilities, even though the Board’s April 2019 order expressly requested such an opinion, and the RO’s instructions reiterated the April 2019 Board directive verbatim. Instead, the July 2020 examiner found that the Veteran’s DD was “less likely than not incurred in or otherwise etiologically related to [his] active duty service.” Service connection established on a direct primary basis requires competent evidence of three things, i.e., a current disability, an in-service event, and a causal relationship between the current disability and the in-service event. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, service connection for PTSD has unique requirements. Specifically, it requires medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), credible evidence that an in-service stressor occurred, and medical evidence of a nexus between the veteran’s current disability and his/her claimed stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). As to the current disability element, § 4.125(a) requires that “the diagnosis of a mental disorder [would] conform to DSM-5 [and be] supported by the findings on the examination report.” Here, the January 2013 and July 2020 VA examiners determined that the Veteran met some but not all criteria for PTSD under DSM-5. In sync, the Veteran’s medical treatment records do not contain a PTSD diagnosis, either under DSM-5, which was published on May 18, 2013, or under its predecessor, the 4th Edition of the Diagnostic and Statistical Manual of Mental Disorders. In sum, the medical record is void of evidence that the Veteran was diagnosed with or experienced PTSD during any portion of the period on appeal. The Board acknowledges the Veteran’s opinion that his mental disorder is PTSD. However, he has not been shown to possess the expertise required to diagnose his mental disorder. Therefore, the Board allocates greater probative value to the findings of the Veteran’s treating medical practitioners and the January 2013 and July 2020 VA examiners. The current-disability element is the threshold requirement, which – if not met – dispenses with all other inquiries. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the record is void of credible evidence suggesting that the Veteran experienced PTSD during any portion of the period on appeal. Thus, the Board concludes that the Veteran failed to meet the threshold element of his claim for service connection for PTSD. Accordingly, the doctrine of the benefit of the doubt is not for application, and the Veteran’s claim for service connection for PTSD is denied. Conversely, the Veteran’s current disability in the form of DD is not in dispute. Further, as the Board’s April 2019 decision clarified, the Veteran’s claim based on his DD is assessed under the secondary theory of entitlement. Since secondary service connection is established upon a showing that the disability at issue is at least as likely as not proximately caused or aggravated by a service-connected disease or injury, 38 C.F.R. § 3.310(a), and the issue of aggravation is not suggested by the record, the analysis here is limited to the nexus between the Veteran’s DD and his underlying service connected physical disabilities. The January 2013 examiner noted that the Veteran’s mental disorder was caused by “significant health problems,” but did not specify which “health problems” caused his DD. Further, the Veteran’s medical records, albeit replete with findings of his treating practitioners that the Veteran’s physical disabilities caused his DD, similarly omitted to specify which physical disabilities were underlying his DD. In sync, the July 2020 examiner made the same observation, but she too did not specify the physical conditions underlying the Veteran’s DD. A claimant’s diagnosis of a mental disorder emanating from “a” physical disability cannot support the award of service connection for the mental health condition unless the underlying physical disability is service connected. Here, the record does not identify the Veteran’s physical disabilities underlying his DD, hence preventing the Board from determining whether each of these underlying disabilities is service connected. However, the Board is nevertheless in the position to adjudicate his DD claim. This is so because the Veteran’s treating medical practitioners and both VA examiners have found a causal connection between the Veteran’s DD and his physical disabilities, to which they referred to in plural. Indeed, since the Veteran is service connected for every physical disability he had complained of or was treated for post service, short of a single disability, i.e., his left-shoulder condition, the fact that his treating medical practitioners and VA examiners used such phrases “physical disabilities,” “medical conditions,” and “health problems” in plural, in order to designate the cause of his DD, their use of the plural form establishes that at least one of the Veteran’s physical disabilities underlying his DD has to be service-connected. In other words, even if the Board were to hypothesize, conservatively, that the plural-form reference indicates that only two – rather than more than two – of the Veteran’s physical disabilities caused his DD, and if the Board were to assume, out of an abundance of caution, that one of these two disabilities is the Veteran’s currently-non service-connected left shoulder condition, the other underlying physical disability still has to be service connected because all of the Veteran’s physical disabilities other than his left shoulder condition are service connected. Accordingly, while the opinion rendered by the July 2020 VA examiner and the RO’s August 2020 Supplemental Statement of the Case based on her opinion failed to comply with the April 2019 Board decision within the meaning of Stegall v. West, 11 Vet. App. 268 (1998), another remand for an addendum medical opinion is not required. Rather, the preponderance of the evidence establishes that the Veteran’s DD is attributable to at least one of his service-connected disabilities. It follows that the Veteran’s claim for service connection for his DD is granted on a secondary basis. REASONS FOR REMAND In its April 2019 decision, the Board noted the Veteran’s assertion that he has been experiencing residuals of left-shoulder cellulitis, which he had contracted in service. Further, the Veteran’s service-treatment records confirm that he was diagnosed with and, from November 5 to November 13, 1969, hospitalized for a left-shoulder abscess with cellulitis. In addition, at his January 2019 Board hearing, the Veteran testified that he was currently treated quarterly at his local VA medical facility for a left-shoulder condition. Accordingly, the April 2019 Board decision directed the RO to afford the Veteran a medical examination to establish the presence, if any, of a left-shoulder disability during the period on appeal and, if such a disability was established, to determine its nature and etiology. In July 2020, the Veteran was provided with a VA examination performed by Dr. K.S.Y., who identified herself as an “allergy and immunology” physician. Dr. K.S.Y. diagnosed the Veteran with arthritis of the left shoulder and opined that “it [was] less likely than not [that] the [V]eteran[’]s current left[-]shoulder arthritis [was] related to the cellulitis and abscess of the left shoulder treated in 1969 [because] cellulitis and abscess [were] skin infections,” and the Veteran’s shoulder “joint space [had] not [been] affected” in 1969, when he contracted cellulitis. However, at no point did the Veteran assert that his left-shoulder joint was affected in 1969. Rather, the Veteran maintained that residuals of his in-service cellulitis eventually caused/contributed to his current left-shoulder disability. The Veteran’s claim is not inconsistent with medical literature noting that residuals of cellulitis might affect a joint, https://www.health.harvard.edu/a_to_z/cellulitis-a-to-z, even though cellulitis is a dermatological condition. Since Dr. K.S.Y., who identified her area of expertise “allergy and immunology,” omitted to even acknowledge, moreover address, the applicability of such a medical theory to the Veteran’s circumstances, her examination was facially inadequate. Therefore, while the Board regrets additional delay, a remand for an addendum medical examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person examination by a VA clinician other than Dr. K.S.Y. The VA clinician should have a background in orthopedic disabilities and, at a minimum, some clinical experience – rather than a mere textbook familiarity – with dermatological conditions in general and cellulitis in particular. 2. Provide the VA clinician with the claims file, to include the instant Remand Order and the Board’s April 2019 Remand Order. 3. The VA clinician is requested to detail his/her medical credentials in order to establish his/her background in orthopedic matters and some clinical experience with dermatological conditions in general and cellulitis in particular. 4. The VA clinician is requested to opine whether it is as likely as not (50 percent probability or greater) that the Veteran’s current left-shoulder orthopedic condition is causally connected, i.e., caused or contributed, to his in-service cellulitis or residuals of cellulitis. The clinician is reminded that the Veteran’s left-shoulder condition need not be caused exclusively or even predominantly by residuals of his cellulitis. 5. The VA clinician is requested to provide a complete rationale for any opinion expressed, based on his/her clinical experience, medical expertise, established medical principles, and evidence of record. 6. After completing the foregoing and any other development deemed necessary, readjudicate the Veteran’s claims for service connection for his left shoulder condition, to include residuals of left shoulder cellulitis. 7. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. 8. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 9. While the law requires that all claims remanded by the Board for additional development must be handled in an expeditious manner, 38 U.S.C. §§ 5109B, 7112, in light of the COVID-19 public health measures undertaken by the Federal government, U.S. States, and municipalities, reasonable accommodations should be made to comply with these measures and ensure the safety of all participants. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan, 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.