Citation Nr: 21064754 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-28 705 DATE: October 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. FINDING OF FACT The evidence of record supports finding that the Veteran's acquired psychiatric disability is secondary to his service-connected degenerative joint disease (DJD) of the right shoulder (hereafter referred to as a "right shoulder disability"). CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Before adjudication, a lengthy discission of procedural history for this claim, as well as others, is necessary for elucidation purposes. In an April 2019 Decision, the Board remanded this claim, as well as entitlement to service connection for pes planus and total disability based on individual unemployability (TDIU). The Board also denied a rating greater than 20 percent for the Veteran's right shoulder disability. The Board found that the psychiatric claim reasonably had been raised by the record in conjunction with the right shoulder claim and that remand was required to secure an examination and opinion, both of which were obtained in July 2019. Thus, substantial compliance has been afforded. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) the Board's denial of an increase for his right shoulder disability. The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of an October 29, 2019, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board improperly relied upon an inadequate examination in reaching its determination that an increase was not warranted. By a November 7, 2019, Order, the CAVC adopted the Parties' JMPR and remanded that issue back to the Board. An April 2020 Board Decision remanded the shoulder claim back to the agency of original jurisdiction (AOJ) to obtain a new examination. A June 30, 2020, Supplemental Statement of the Case (SSOC) continued denials of service connection for pes planus and TDIU. On July 15, 2020, Counsel for the Veteran submitted a VA Form 20-0996 (Request for Higher-Level Review), indicating that he would like to opt his pes planus and TDIU claims into the Appeals Modernization Act (AMA). As a valid election into the Modernized System. Thus, those appeals no longer can be addressed in the Legacy System and no longer will not be discussed. See 38 C.F.R. §§ 3.2500(a)(1)(i), 19.2(d)(2), 19.52(b). On July 9, 2020, the Veteran submitted an intent to file; he subsequently filed a September 16, 2020, VA Form 21-526EZ seeking service connection for a psychiatric disability. On July 24, 2020, the AOJ issued a SSOC denying an increase for the Veteran's right shoulder disability. On August 5, 2020, Counsel similarly filed a Request for Higher-Level Review, requesting that this issue be placed into the Modernized System. As such, that issue likewise no longer is part of this Legacy appeal, and no longer will be discussed. See 38 C.F.R. §§ 3.2500(a)(1)(i), 19.2(d)(2), 19.52(b). In a September 2020 Decision, the Board vacated its prior remand as to the psychiatric claim, finding that it never had jurisdiction because the Veteran had not filed that claim on a standard form, citing 38 C.F.R. § 20.201. Three days later, the AOJ awarded the Veteran service connection for a psychiatric disability, effective July 9, 2020 (the date of his intent to file). The Veteran appealed to the CAVC the Board's September 2020 vacatur of the portion of the April 2019 Decision that remanded the psychiatric claim. The Parties resolved that appeal by way of an April 22, 2021, Joint Motion for Remand (JMR). The Parties agreed that, in vacating the remand portion for the psychiatric claim, the Board's September 2020 vacatur failed to take into consideration the CAVC's holding in Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021), which states that, pursuant to 38 C.F.R. § 3.155(d)(2), the AOJ must adjudicate secondary claims for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Thus, vacatur was improper. By an April 28, 2021, Order, the CAVC adopted the Parties' JMR and remanded the issue back to the Board. Ordinarily, a grant of service connection extinguishes appeals before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); see 38 U.S.C. § 7104. Thus, due to the AOJ's award of service connection, this issue should be moot. Arguing against dismissal, Counsel avers that, if the Board fails to again adjudicate the issue of entitlement to service connection for an acquired psychiatric disability, the Veteran will suffer prejudice via the effective date assigned by the AOJ. See Aug. 17, 2021, Brief. In support of this argument, he cites to Bailey, which discusses a prior case; both will be addressed. The Board first turns to Warren v. McDonald, 28 Vet. App. 214 (2016). In short, the veteran there filed a claim for entitlement to service connection for sleep apnea, which the AOJ denied in an April 2009 decision; the veteran timely appealed in May 2009. Id. at 215. In April 2010, the veteran allegedly withdrew over the phone his appeal. Id. at 216. On May 28, 2010, the veteran's representative filed additional material, which the RO construed as a claim to reopen. Ibid. In September 2010, the AOJ awarded the veteran service connection for sleep apnea, effective May 28, 2010 (the date it received the additional submission from the representative). Ibid. In its November 2014 decision, the Board first noted that the veteran properly withdrew his May 2009 appeal and recharacterized the issue on appeal as entitlement to an effective date earlier than May 28, 2010, for the award of service connection for sleep apnea. Id. at 217. The CAVC first found that the Board had not ensured a proper withdrawal of the veteran's May 2009 appeal. Id. at 219 ("[T]he Court is left with the definite and firm conviction that the Board committed a mistake by finding that Mr. Warren withdrew his appeal." (Citation omitted)). Thus, the Board's characterization of the issue also was flawed. As the CAVC noted, the second claim stream arose based on VA's belief that the veteran had withdrawn his 2008 claim. In the course of this second claim stream, in September 2010 the RO granted service connection for sleep apnea secondary to service-connected asthma, effective the date of his purported claim to reopen, May 28, 2010. The record does not show that Mr. Warren appealed the September 2010 decision. Id. at 220. (Internal citations omitted). The CAVC continued: Caselaw is clear that, because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim. Id. at 221 (citations omitted). Next, the Board turns to Bailey. There, in determining that the veteran was not entitled to a disability rating greater than 60 percent for prostate cancer residuals, the Board specifically noted in its March 2019 decision that it declined to "factor diarrhea and lymphedema into its evaluation of the veteran's prostate cancer residuals." 33 Vet. App. at 192. In July 2019, however, the AOJ granted service connection for lymphedema of the bilateral lower extremities, assigning a 10 percent rating for each effective January 30, 2019 (the date the veteran filed a formal claim for lymphedema). Ibid. First, the CAVC held that secondary service connection for lymphedema had been raised by the record in association with the veteran's increase rating claim for his prostate cancer residuals. Id. at 198 ("The Court concludes that these statements by the March 2016 VA examiner . . . reasonably raised entitlement to secondary service connection for those conditions."). Next, the CAVC had to answer whether the issue was mooted due to the AOJ's July 2019 award. It concluded that the issue was not moot: "Mr. Bailey's appeal to the Board included entitlement to secondary service connection for lower extremity lymphedema, an issue that the Board has not yet addressed and that the RO could not have fully and finally resolved." Id. at 204. Although the AOJ granted service connection, that decision "could not and did not divest the Board of jurisdiction over the veteran's initial appeal, and a remand is necessary to process that appeal to completion." Ibid. (citing Warren, 28 Vet. App. at 221). That remand the CAVC noted, "preserves the possibility of an earlier effective date and safeguards against any preclusive effect of the later RO decision." Ibid. (citations omitted). Warren and Bailey have an underlying theme to their respective holdings: AOJ adjudication in the first instance of entitlement to service connection where that issue already was before the Board. In Warren, the Board improperly found that a withdrawal had taken place and adjudicated a later rating decision that the Veteran never appealed; in Bailey, it failed to consider additional symptoms and whether, pursuant to 38 C.F.R. § 3.155(d)(2), those symptoms could be secondarily service connected to the primary service-connected condition on appeal. Although prior to Bailey, the Board here properly found in the April 2019 Decision that secondary service connection had been raised by the Veteran's increase rating claim for his right shoulder disability. As such, it remanded the psychiatric claim for further development. That development was completed three months after the remand, and it provided a positive secondary nexus opinion (addressed more fully below). Yet, the AOJ delayed in awarding service connection. It is not until a mere three days after the Board vacates its prior remandcutting off any association of the psychiatric claim from the right shoulder increase rating claimthat the AOJ awards service connection. For the effective date, the AOJ hangs its hat, as it must, on the July 9, 2020, intent to file. Now that the CAVC has undone the Board's improper vacatur, there are two appeal streams for this claim just like in Bailey and Warren: one stemming from the Board's April 2019 remand, and one stemming from the Veteran's July 2020 intent to file. See 33 Vet. App. at 204; 28 Vet. App. at 22021. Because the CAVC has placed back into the Board's hands jurisdiction of the first claim stream, it must adjudicate that claim, as the issue is not mooted merely by the AOJ adjudicating a subsequent appeal stream that never should have existed. With that procedural discussion behind it, the Board turns to the issue of entitlement to service connection for a psychiatric disability in connection with the Veteran's original November 2015 claim for a right shoulder disability. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The only evidence that needs discussing is the July 2019 VA psychiatric examination. The report notes a diagnosis of unspecified depressive disorder and unspecified anxiety disorder with panic attacks. The examiner provided the following opinion responding to the Board's 2019 remand instructions: Unspecified depressive disorder and Unspecified anxiety disorder with panic attack as likely as not due to pain in shoulder and ankles. Records from 2015-2017 show diagnosis and treatment for depression and anxiety. With regards to depression and anxiety due to shoulder joint disease, veteran reports that he experiences depression partially due to his pain however veteran reports pain from his ankles affects him the most). Pain reportedly interferes with his ability to walk long distances and veteran reports his pain interferes with his mood and motivation. Veteran reports pain has interfered with physically demanding jobs causing him to quit or be fired. The diagnoses are equally attributable to his premature discharge and his s/c shoulder and ankle conditions. The Board finds that the elements for secondary service connection have been established. There is evidence of a current psychiatric disability, the Veteran is service connected for his right shoulder, and the VA examiner clearly opined that the right shoulder pain the Veteran experiences has caused or aggravated his psychiatric condition. Thus, the Board finds that all the elements for secondary service connection have been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record supports the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, his appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.310. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.