Citation Nr: 21005204 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 181115-961 DATE: January 29, 2021 ORDER Service connection for major depressive disorder (MDD) is granted. FINDING OF FACT The weight of the evidence supports finding that the onset of the Veteran’s MDD was during his active duty service; and is aggravated by his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for MDD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38C.F.R. §§3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to March 1999. This appeal was previously before the Board in November 2019 and the service connection claim for MDD was denied; whereas, the service connection claim for sleep apnea was granted and the rating reduction of bilateral lower extremity radiculopathy was restored to 20 percent. The Veteran appealed the decision to the United States Court of Appeals for Veteran’s Claims (Court). The Veteran did not challenge the Board’s decision as to the service connection claim for sleep apnea or the restoration of the bilateral lower extremity radiculopathy because they were favorable to the Veteran. The Court granted a Joint motion for Partial Remand (JMPR) vacating the portion of the November 2019 Board decision that denied the service connection claim for MDD. The Court found that on remand, the Board should readjudicate the service connection claim for MDD. The Court found that the Board did not provide an adequate reasons and bases to support its findings and conclusions, when it denied the Veteran’s service connection claim for MDD. The Court pointed out that the Veteran submitted an October 2018 private medical opinion, which concluded that he suffered from MDD, that more likely than not began during military service and was aggravated by his service-connected lumbar spine disability. The Court found that the Board erred when it found that the opinion was afforded low probative weight because (1) the service treatment records (STRs) did not support the finding reached by the private doctor, that the onset of the Veteran’s depression was during his active duty service. The Court explained that STRs do not need to show a diagnosis of a condition, rather “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Court also found that the private physician’s report made clear that they were relying on other information beyond the STRs to form their opinion. The Court also found that the Board erred because (2) the STRs showed that the Veteran had a history of alcohol and tobacco abuse and was criticized for his alcohol consumption and the Board stated that service connection may not be granted for a disability that arises from a veteran’s abuse of alcohol or drugs. However, the parties agreed that the Board’s conclusion either misstated or failed to account for the findings of the private medical opinion, which stated that the Veteran’s alcohol use indicated that he had begun “self-medicating” to treat his MDD. The Court found that the Board may not refute a medical expert with its own unsubstantiated medical judgment, but must rely on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The Court also found that the Board erred because (3) the Board noted a “significant time lapse” between the Veteran’s service and the diagnosis of a psychiatric disorder. However, the parties noted that it was medical treatment, not a formal medical diagnosis, that must be considered. The Court pointed out that the Veteran separated from the military in March 1999 and a December 2000 VA treatment note indicated that the Veteran had depression and a July 2004 treatment record indicated he was being actively treated for anxiety/depression. The Court found that the Board failed to explain how the time lapse between discharge and the evidence of record indicated a “prolonged” period of time without medical complaint. The Court also found that the Board erred when it afforded the private physician’s opinion as to secondary service connection little probative weight. The Court pointed out that the Board considered a medical journal article discussed by the private doctor and found it was insufficient to establish a medical nexus. The parties noted that this was an error because the Board may not individually assess that medical text and assign that text probative value. McCray v. Wilkie, 31 Vet. App. 243, 255 (2019). The parties also noted that the private physician referenced numerous medical journal articles in support of their opinion, but the Board did not mention those articles and appeared to infer that the report relied on a singular article. Finally, the parties noted that the Board had a duty to read the private medical opinion as a whole, as opposed to simply relying on the section of the report detailing medical journal articles. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Here, the Board will readjudicate the Veteran’s service connection claim that takes into account the findings of the August 2020 Court JMPR. The Board notes that the Veteran’s representative has submitted a motion seeking to have the Board reconsider the issue of entitlement to a TDIU. See Appellate Brief received September 1, 2020. The November 2019 Board decision found that there was no increased rating claim associated with the current appeal that could draw in the issue of a TDIU and declined to take jurisdiction over a TDIU. The representative asserted that the Veteran’s claim for a TDIU was part of the Veteran’s increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Appellate Brief received September 1, 2020. However, the Board notes that the issues on appeal were a service connection claims and a rating reduction; the appeal did not contain any increased ratings claims. The Board is unaware of any precedential caselaw that extends Rice to service connection and reduction appeals. The Board acknowledges that the April 2018 rating decision addressed the ratings for the lower extremities; however, this was in the context of a rating reduction appeal. Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals on motion by the appellant or his or her representative or on the Board's own motion: (a) upon allegation of obvious error of fact or law; (b) upon discovery of new evidence in the form of relevant records or reports of the service department concerned; or (c) upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. 38 C.F.R. § 20.1001. Here, the Board finds that there has been no allegation of obvious error of fact or law by the Veteran or his representative; there has been no discovery of new evidence; and there has been no allegation that the Board has been materially influenced by false or fraudulent evidence. Here, the fact remains that the Veteran does not have an increased rating claim on appeal. As such, the Veteran’s TDIU claim is not part and parcel of any of the claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the motion for reconsideration to adjudicate the Veteran’s TDIU claim is denied and the Board will not take jurisdiction over a TDIU claim at this time. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for MDD is granted. The Veteran asserts that his MDD was the result of his active duty service, and is secondary to his service-connected lumbar spine disability. His STRs did not show any complaints or diagnosis of any mental disorders. However, a June 1998 physical examination noted tobacco and alcohol abuse and also noted that the Veteran was criticized for his alcohol consumption. A review of the Veteran’s post-service medical records shows that he attended a 3.5-hour Pain Clinic Orientation class. He reported that his low back pain caused severe difficulty with the following activities; lifting, walking, sitting, standing, sex life, and social life. His responses on the Beck Depression Inventory suggested minimum depression related to his back pain. See VA Treatment Record dated December 27, 2000. A July 2004 treatment record shows that he was being followed for service-connected low back pain, and adjustment disorder with depressed mood and anxiety. See VA Treatment Record dated July 23, 2004. The post-service medical records also show that the Veteran was seen at VA for mental services in December 2012, April 2015, and July 2016. In 2012, a VA physician found that the Veteran was presented with recent life stressors, causing him to drink excessively. In April 2015, he reported being upset after he received a letter from VA, proposing to reduce his benefits, which caused him to drink heavily and to have suicidal thoughts. In July 2016, the Veteran continued to report elevated stress, depressed mood, sleep disturbance, and irritability triggered by personal life stressors. In support of his claim, the Veteran submitted a research article suggesting an increased rate of suicide in veterans who served in Afghanistan. He also submitted articles regarding the reciprocal relationship between pain and depression. He also submitted several buddy statements from friends and family members. They all knew him prior to entering the military and reported that the Veteran was a fun-loving and easy-going person. They all noticed that during his active duty service he started to change, becoming more anxious and developing a short fuse. They all also reported that after his separation from service he became more distant and withdrew from most social activities. The Veteran submitted a private examination report in October 2018. The examiner reported that the Veteran was diagnosed with MDD. The Veteran admitted to self-medicating with alcohol in the past. He reported that his mental health issues began during service, due to recruiting missions, long hours, and separation from his family. He also began to suffer from back pain, which brought on depression during service. The examiner reported the following symptoms; depressed mood, anxiety, near continuous panic, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, an inability establish and maintain effective relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner noted that he was hospitalized for suicidal ideation in 1985 for two weeks and overnight in 2011 and 2014. The examiner also noted that the Veteran, his wife, his sister-in-law, and cousin reported that he self-medicated with alcohol during his active duty service when he became stressed about being unable to see his children when the military denied his request to relocate. The examiner cited to two different medical journal articles; the first found that active military service impacts depression, anxiety, and quality of life satisfaction and the second found that there was a causal relationship between medical issues and MDD, and in the Veteran’s case, the Veteran’s service connected lumbar spine disability and its associated radiculopathy, gastroesophageal reflux disease (GERD) and MDD. The examiner concluded that the Veteran’s MDD more likely than not had its onset during his active duty service and has also been aggravated by his lumbar spine disability, radiculopathy, GERD, and hemorrhoids. The Board notes that the Veteran has not been afforded a VA mental health examination during this period on appeal. As such, there is only one competent medical opinion of record. In reviewing the evidence of record, to include the August 2020 Court JMPR, the Board finds that service connection for MDD is warranted. The Board notes that the Veteran’s Beck Depression Inventory suggested minimum depression related to his back pain; and A July 2004 treatment record shows that he was being followed for service-connected low back pain, and adjustment disorder with depressed mood and anxiety. See VA Treatment Record dated December 27, 2000 and July 23, 2004. The Board recognizes that the Beck Depression Inventory did not diagnose the Veteran with depression, but notes that the Veteran was starting to show depressive symptoms within a year of his separation from the military, which does not indicate a prolonged period of time without medical complaint. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Board finds that such evidence supports the private physician’s conclusion that the onset of the Veteran’s depression was during his active duty service because he was showing signs of depression about nine months after his separation from the military and was related to his service-connected low back disability, which had its onset during his active duty service. As such, the Board also concedes that the post-service medical records supports finding that there was no significant time-lapse between his separation from the military and an indication that he had depressive symptoms; and that the Veteran need not show a diagnosis for MDD, instead showing symptoms of such a condition supports finding that there was a continuity of symptomatology. Id. The Board acknowledges that service connection may not be granted for a disability that arises from a veteran’s abuse of alcohol or drugs. Allen v. Principi, 237 F.3d. 1368 (Fed. Cir. 2001). However, the Court found that the Board erred when it did not take into account the private physician’s finding that the Veteran had begun to self-medicate during his active duty service and that his depression did not arise from his abuse of alcohol. The Court noted that the Board may not refute a medical expert with its own unsubstantiated medical judgment, but must rely on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). As such, the Board acknowledges that Allen is inapplicable in this case and finds that the private physician’s opinion that the Veteran’s depression did not arise from his abuse of alcohol, but was instead self-medicating with alcohol, is afforded great probative weight and the Board does not refute their expert opinion. Id. The Board also acknowledges the private physician’s citation of medical journal articles. The physician explained that studies have shown that active duty military personnel become disillusioned with their personal and professional identities and as a result of the chronic guilt and shame associated with their service identities, have more mental health events than civilians. Regarding secondary service connection, the physician explained that individuals with medical issues and MDD, become more disabled due to the holistic effect of the medical and psychiatric disturbances and noted that the Veteran had physical disabilities of a lumbar spine disability with associated radiculopathy, GERD, hemorrhoids, and the psychiatric disorder of MDD. The physician cited to an article, which indicated that the cause and effect relationship between the pain and depression and its directionality is still being defined. The Board acknowledges that the private physician also referenced numerous medical journal articles in support of their medical opinion regarding secondary service connection, which has been pointed out by the Court in the JMPR, and has read the private medical opinion as a whole and affords the opinion great probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the articles alone do not establish a nexus, the Board acknowledges that the physician’s opinion, which relies on their medical expertise and experience is sufficient to establish a nexus. As such, the Board notes that it has not individually assessed the medical text cited to by the private physician and has not assigned that text probative value, but instead has assigned probative weight to the physician’s medical opinion. McCray v. Wilkie, 31 Vet. App. 243, 255 (2019) As such, based on the foregoing reasons, and for the reasons pointed out by the August 2020 JMPR, the Board affords the October 2018 private physician’s examination report great probative weight. Here, the private physician has explained that the onset of the Veteran’s MDD was during his active duty service, which has been supported by the contemporaneous evidence of record, when a December 2000 Beck Depression Inventory showed minimum depression. The Board notes that the onset of the Veteran’s low back disability was during his active duty service. Further, the physician also explained that the Veteran’s service-connected disabilities, to include his lumbar spine disability and its associated radiculopathy has aggravated his MDD. This finding is also corroborated by the contemporaneous evidence of record because the December 2000 VA treatment note indicated that the Veteran’s suggested minimum depression was due to his low back pain. The Veteran has evidence of a current disability (MDD), is service-connected for a lumbar spine disability, and has shown by competent medical evidence that his physical service-connected disabilities have aggravated his MDD. As such, the Board finds that service connection is warranted on both a direct and secondary basis. Accordingly, service connection for MDD is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.