Citation Nr: 21064207 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 13-19 176 DATE: October 19, 2021 ORDER Entitlement to service connection for depression, to include as secondary to service-connected degenerative joint disease (DJD) with history of hallux valgus deformity and bunions, right great toe, status-post osteotomy and avascular necrosis, is denied. FINDING OF FACT The most probative evidence establishes that the Veteran's claimed depression was not incurred in active service and is not causally related to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for depression, to include as secondary to service-connected DJD with history of hallux valgus deformity and bunions, right great toe, status-post osteotomy and avascular necrosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, inter alia, denied service connection for depression. In October 2017 and September 2018, the Board, inter alia, remanded the claim for further evidentiary development. In August 2020, the Board, inter alia, denied the Veteran's service connection claim for depression. The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for partial remand (JMPR). In July 2021, the Court granted the parties' motion, vacated the portion of the August 2020 Board decision denying service connection for depression and remanded the matter for actions consistent with the JMPR. Entitlement to service connection for depression, to include as secondary to service-connected DJD with history of hallux valgus deformity and bunions, right great toe, status-post osteotomy and avascular necrosis, is denied. The Veteran contends that he has depression due to his service connected DJD with history of hallux valgus deformity and bunions of the right great toe. See February 2011 Supplemental Claim; June 2012 Notice of Disagreement (NOD). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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 (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In addition, certain chronic diseases, including psychoses, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) are negative for complaints, observations, or treatment regarding a psychiatric disorder. On a February 1992 Report of Medical History, the Veteran denied having or ever having had depression or excessive worry or nervous trouble of any sort. Although he reported frequent trouble sleeping, the examining physician noted that the Veteran only experienced insomnia when he napped during the day. On a December 1993 Report of Medical History accompanying his separation examination, the Veteran denied having or ever having had depression or excessive worry or nervous trouble of any sort. He reported having or ever having had trouble sleeping. Psychiatric examination was normal. Post-service medical records do not reflect any treatment or symptoms of a mental health disorder prior to January 2012, when the Veteran was diagnosed with depressive disorder NOS. See VA Mental Health physician note dated January 2012. VA mental health clinic notes from September 2004 to July 2007 reflect consistent negative depression screens. The Veteran attended consistent VA mental health clinic therapy sessions from January 2012 to May 2013. Notably, however, there is no evidence of record showing that he related his depression to his service-connected right toe disability. A February 2012 VA mental health note reflects that the Veteran stated that he was "here for help" because of "nightmares about the military and stuff like that." He reported bad dreams about death and the military but did not elaborate. He also shared some of the medical problems he suffered as a result of physical deterioration in the military and indicated that he had not been able to work in many years due to back, knee, and ankle problems. He reported that his spouse had been the sole source of regular income, and he felt inadequate as a provider. The Veteran also reported that he was struggling with an ongoing battle with VBA because he had been denied SSDI. His treating clinician noted that much of his depressed mood was circumstantial. The Veteran underwent a VA examination in February 2018. The examiner noted diagnoses of unspecified depressive disorder, currently with anxious distress, and alcohol use disorder, severe, in sustained full remission. The examiner also indicated that the Veteran was not diagnosed with any chronic conditions but noted daily pain, high blood pressure, and hypertension impacted his mood and motivation, although he did not state that they caused his emotional problems and did not mention them until the examiner asked about chronic medical problems. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran's unspecified depressive disorder was less likely than not related to his military service. The examiner opined, Veteran's current diagnosis meets DSM criteria for Unspecified Depressive Disorder, but there is no evidence that is related to the veteran's military service. There is no report of mental health issues during the veteran's service time and no consistent report of ongoing mental health problems since military service. While the claimant reports the symptoms started in service, he was not able to state why, and was not a reliable historian due to contradictory statements and the use of medical terminology. Therefore, there is no nexus between military service injuries/medical problems and current symptoms. The examiner further opined that the Veteran's unspecified depressive disorder was less likely than not proximately due to or aggravated by the Veteran's service-connected right toe disability. In so opining, the examiner noted that there were no in-service reports or records of mental health issues and no consistent report of ongoing mental health problems since service. The examiner further noted, again, that the Veteran made inconsistent statements regarding the onset of symptoms and use of medical terminology. Moreover, the examiner noted that there was nothing in the record supporting a connection between the disorder and service. In September 2019, the February 2018 VA examiner provided an addendum opinion, concluding that it was less likely than not that the Veteran's depression was aggravated by his service-connected DJD with history of hallux valgus deformity and bunions, right great toe, status-post osteotomy and avascular necrosis. The examiner opined, It remains my opinion that is less likely as not that the Veteran's depression was aggravated by his service-connected degenerative joint disease with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis. Veteran[']s current diagnosis meets DSM criteria for unspecified depressive disorder, but there is no evidence that it is related to the veteran's DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis for which he is 10% disabled. There is no report of mental health problems since the veteran developed DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis for which he is 10% disabled either in reporting of the mental health problems or in seeking treatment which started in 2015. Further, the veteran did not report in his 2/25/2018 psychiatric evaluation with me that his DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis for which he is 10% disabled were responsible for, or played a role in, his emotional problems. In fact the reasons the veteran gave for his emotional problems varied between not knowing, his hypertensive medications and deaths in his family. Further, from his use of medical terminology, inconsistent reporting in the examination, occasional vagueness in descriptions, inconsistencies within the medical records (such as his use of illicit drugs), a lack of mental health records connecting the veteran's emotional problems to his DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis for which he is 10% disabled, and opportunity for a secondary gain sum up to the fact that malingering cannot be ruled out in this purported connection between the Veteran's emotional problems and his DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis for which he is 10% disabled. While I do not doubt that the veteran's DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis cause[s] him occasional problems including pain and there is an association between pain and depression in the medical literature (but not for EVERY patient with pain), one would expect that if the veteran's DJD with history of hallux valgus deformity and bunions, right great toe, status post osteotomy and avascular necrosis was causing statistically significant pain or emotional problems he would have mentioned this in his psychiatric examination, with me or others, as a source of relationship problems, work problems or emotional well-being which he did and has not. After a review of the evidence, the Board finds that service connection is not warranted for depression. As set forth above, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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 (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). While the Board acknowledges that the Veteran has a current diagnosis of unspecified depressive disorder, the preponderance of the evidence is against a finding that the Veteran's unspecified depressive disorder was either caused or aggravated by his service-connected right toe disability. In that regard, the Board assigns great probative weight to the February 2018 VA examination and opinion and the September 2019 addendum opinion, as the examiner reviewed the Veteran's claims file in its entirety and considered the Veteran's reported history. After considering the record, the examiner concluded that the Veteran's depression was not caused or aggravated by his service-connected right toe disability. The examiner provided a reasoned conclusion and clear rationale. Further, she supported her reasons for finding that the Veteran's statements at the February 2018 in-person examination were not credible, explaining that the Veteran's statements were contradictory and conflicted with his medical treatment records. There is no medical opinion evidence to the contrary. The Board has also carefully considered the Veteran's contentions that his depression is related to his service-connected right toe disability. However, the Veteran in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran's contentions that his depression is related to his service-connected right toe disability to be lacking in credibility. The Board finds that had the Veteran, in fact, been experiencing psychiatric symptoms due to his right toe disability, he would have reported it in clinical settings when he was seeking treatment. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J. concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Notably, not only did the Veteran fail to report that his psychiatric symptoms were due to his service-connected right toe disability to treating clinicians, he similarly failed to report such at the February 2018 VA examination. As noted above, the Veteran indicated that daily pain, high blood pressure, and hypertension impacted his mood and motivation, but he only so stated after the examiner asked him about chronic medical conditions. Additionally, the Veteran did not specify the origin of his daily pain. The Board notes that in addition to his right toe disability, the Veteran has multiple nonservice-connected musculoskeletal disabilities which cause pain, including spinal stenosis, osteoarthritis of the spine and knee, chronic low back pain, and neck pain. The failure to meet the criteria for secondary service connection does not preclude a veteran from establishing entitlement to service connection on a different basis, namely direct service connection. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Although the Veteran asserted secondary service connection, the Board must consider whether direct service connection is warranted if this theory is raised by the evidence of record. Here, to the extent that the theory of direct service connection is raised by the record, there is no medical evidence of an in-service psychiatric disability. While the Board notes that the Veteran reported during the February 2018 VA examination that his symptoms started in service, the Board finds that statement to be lacking in credibility. As noted above, the record is completely devoid of complaints, observations, or treatment regarding a psychiatric disability until January 2012. Although the Board notes that the Veteran reported having or ever having had trouble sleeping during active duty in his Report of Medical History, referenced above, the examining physician noted that the Veteran only experienced insomnia when he napped during the day. Thus, the in-service disease or injury element has not been met. Additionally, there is no evidence that the current disability may be associated with service. As noted above, the February 2018 VA examiner determined that the Veteran's depression was not causally related to his military service. The Board assigns great probative weight to the examiner's opinion, as the examiner reviewed the Veteran's claims file in its entirety and considered the Veteran's reported history. After considering the record, the examiner concluded that the Veteran's depression was not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale. Additionally, she supported her reasons for finding that the Veteran's statements were not credible, explaining that the Veteran could not explain why his depression began in service and was not a reliable historian due to contradictory statements and the use of medical terminology. There is no medical evidence opinion to the contrary. Therefore, as the in-service disease or injury element has not been met, and there is no evidence that the current disability may be associated with service, entitlement to service connection on a direct basis is not warranted. Based on the foregoing, as the probative evidence is against the Veteran's claim of service connection for depression, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claim for depression is denied. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.