Citation Nr: 21070368 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-67 711 DATE: November 23, 2021 ORDER Service connection for major depressive disorder (MDD) is granted. Service connection for headaches, as secondary to service-connected MDD, is granted. Service connection for intervertebral disc syndrome (IVDS), as aggravated by service-connected left knee instability and tricompartmental osteoarthritis, is granted. Service connection for a left leg disorder is dismissed. FINDINGS OF FACT 1. The Veteran's MDD is related to service. 2. The Veteran's headaches are caused by his service-connected MDD. 3. The Veteran's IVDS is aggravated by his service-connected left knee instability and tricompartmental osteoarthritis. 4. In September 2021, prior to the promulgation of a Board decision, the Veteran withdrew his appeal of the issue of service connection for a left leg disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for MDD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for headaches, as secondary to service-connected MDD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for IVDS, based on secondary aggravation, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for withdrawal of the appeal of the issue of service connection for a left leg disorder are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to July 1977. The case is on appeal from December 2013 and March 2015 rating decisions. The case was most recently before the Board in March 2021. At that time, the Board remanded the claims for service connection for a back disorder, left leg disorder, and an acquired psychiatric disorder for additional medical opinions. The Board also remanded the claim of service connection for headaches following a June 2020 joint motion for partial remand (JMPR), granted by the United States Court of Appeals for Veterans Claims (Court) in August 2020, which found the previous May 2019 Board denial of headaches should be vacated as an intertwined issue and secondary to the psychiatric disorder claim. Legal Criteria 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 veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for MDD. 2. Service connection for headaches. The Veteran contends that he has a psychiatric disorder that began during his period of active service. He indicates that it is difficult to talk about his experiences during service, partly from finding it hard to trust or open up to anyone. See January 2015 Report of General Information. The Veteran's service treatment records (STRs) indicate that at the time of his enlistment examination in September 1971, the Veteran marked "Frequent trouble sleeping," "Depression or excessive worry," and "Nervous trouble of any sort" on his self-report of medical history. However, the accompanied doctor notes state the Veteran was nervous, with no diagnosis, and the clinical evaluation found his psychiatric evaluation to be normal. At the time of his separation examination in May 1977, the Veteran again reported frequent trouble sleeping and nervous trouble; however, the examining doctor did not address these indications in the notes, and marked his clinical evaluation for psychiatric issues as normal. Post-service medical records show the Veteran seeking mental health treatment as early as May 2002, with diagnoses ascertained of MDD, recurrent and severe, and prior substance abuse in sustained full remission. See October 2011 Social Security Administration (SSA) Medical Treatment Records. In July 2007, he was additionally diagnosed with generalized anxiety disorder. Id. During an evaluation in February 2008, a psychologist described his current manifestations as severe depression, anxiety, and insomnia from not being able to work due to his back issues, and it was additionally written that he had "PTSD due to combat in war." Id. The Veteran was also admitted to the emergency room in August 2009 after an attempt to cut his wrists with a reported history of PTSD. Id. He was again admitted to the hospital is psychiatric crisis in June 2010, with an admitting diagnosis of schizophrenia, but later reassessed as MDD with psychotic features. See June 2010 Medical CAPRI Document. In May 2011, the SSA determined that the Veteran had been disabled since June 2005, with a primary diagnosis of a disorder of the back, and a secondary diagnosis of affective/mood disorders. The Veteran was afforded a VA examination in November 2011, which documented a diagnosis of PTSD and MDD, recurrent and severe. The examiner stated that his PTSD symptoms have been longstanding since military service and the Veteran has been socially detached, isolated, and avoidant since then. Depression was thought to be a more recent development from not working. In April 2017, the Veteran was evaluated by a private psychologist that determined his primary psychiatric diagnosis is MDD, recurrent, moderate, per the current criteria listed in the American Psychiatric Association diagnostic manual, DSM-5. After the psychologist conducted an interview and reviewed the Veteran's claims file and medical history, she opined that it was her belief that his depressive disorder began in military service, and has continued uninterrupted to the present. She additionally addressed the Veteran's notations on his military entrance examination, opining that he never had symptoms of depression prior to service, but rather that he was experiencing nervousness about joining the service while his girlfriend was pregnant and was uncertain about what to expect. The Veteran submitted the lay statements of family members in March 2018. His brother and sister stated that prior to service, the Veteran interacted well with others, and was social and happy. However, that when he came home while on leave and after service, he was a different person, more quiet, isolated, no patience, appeared stressed, and had a "short fuse." In December 2019, the Veteran underwent a new VA examination. The examiner listed diagnoses of other specified personality disorder, and other specified anxiety disorder, mild. The examiner based the personality disorder diagnosis on the Veteran's reports of distrust of others and related suspiciousness, but indicated he was unwilling to diagnose PTSD based on conflicting medical evidence and history. The examiner opined that both the Veteran's personality disorder and mild anxiety is not a result of military service, or in any way was aggravated beyond its predictable course by military service or any service-connected disability. Following a June 2020 Board remand, the Veteran obtained an addendum opinion from the private psychologist that previously interviewed and evaluated him in April 2017, and in light of the December 2019 VA examiner's opinion. She stated that she continues to agree with her original findings that the most appropriate diagnosis based on her examination and the record is major depressive disorder, recurrent and moderate. She explained that the Veteran may fit different diagnoses at different points of time, but the most consistent disorder that has existed from the time of service to the present is a predominant depressive disorder. Thereafter in July 2020, the same December 2019 VA examiner provided an addendum opinion. He opined that the Veteran's psychiatric condition is less likely than not proximately due to, or aggravated by, military service or a service-connected disability. As rationale, the examiner appears to determine that the Veteran has an anxiety disorder that is mild, that preexisted service, and which was not worsened beyond the original baseline. He additionally questions the probative value of the private psychologist's opinion, "as such based only on self-report/face-valid data and did not cite relevant data such as the enlistment exam, STRs, etc." Here, the opinion of the VA examiner in December 2019 and July 2020 have been determined inadequate. It does not appear that the examiner fully considered the totality of the Veteran's record, disregarding all prior diagnoses of MDD from 2003 to the present to include hospitalization from independent providers, relying solely on his testing and assessment, and without apparent consideration of the Veteran's lay statements and those of family members as to the onset and continued symptomology of psychiatric symptoms. The Board finds the April 2017 opinion from the private psychologist, as well as her June 2020 addendum opinion, to have high probative value as it is clear and unequivocal. The psychologist's opinion was based on the relevant information, including an extensive interview of the Veteran, review of the Veteran's claims file to include his military entrance and separation reports, post-military treatment records, and with consideration of the Veteran's statements regarding his military service and continuous symptoms since separation. The examiner's explanations are logical and follow from the facts and information. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). She directly opined that she believed his current depression disability began during his service, and that it did not exist prior to service, with an explanation as to why he noted nervousness at the time of enlistment. Furthermore, her diagnosis of MDD was based on the current DSM-5 criteria, and aligns with prior diagnoses of medical providers throughout his claims file. In consideration of this evidence, the Board finds that the Veteran currently has MDD, and the condition is related to service. This is particularly so when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The Board additionally finds that the Veteran has a diagnosis of tension headaches, and they are a result of his now service-connected MDD. The Veteran reported ongoing headaches during a neurology consult in August 2009, and during a private examination was diagnosed with tension headaches in May 2017. See October 2011 SSA Medical Treatment Records and May 2017 VA Examination. The May 2017 private medical doctor also opined that his headaches were as likely as not caused by his depression. In support of his opinion, the examiner cited to and supplied medical journal articles that find an association between depression and headaches. Applying this to his specific condition, the examiner stated the Veteran reports that when his depression symptoms increase, so does his stress which brings on his headaches. The Board notes that there is no medical evidence weighing against a nexus between the Veteran's headaches and his psychiatric condition. Moreover, the examiner's explanation is logical, with appropriate application of the Veteran's medical history with the current available medical literature. See Monzingo, 26 Vet. App. at 106; see also Nieves-Rodriguez, 22 Vet. App. at 295. Thus, when resolving reasonable doubt in the Veteran's favor, the Board finds that he currently has headaches that are related to his service-connected MDD. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 49. Accordingly, service connection is warranted for the Veteran's MDD, as well as for his headache condition, on a secondary basis to his MDD. 3. Service connection for IVDS. The Veteran contends that service connection should be warranted for his back disability on a secondary basis, either caused by his service-connected left knee condition, or permanently aggravated by it. See May 2018 Correspondence. Available post-service medical records reflect the Veteran seeking treatment in 1986 for low back pain with radiation into both of his legs, and a slow, stiff gait. At that time, the Veteran complained of back pain over the past several years while he was working in construction, but that typically alleviated by the following day. However, a particular incident occurred in June 1986 while lifting a wheelbarrow over 90 pounds, followed with sharp pain. See May 1986 Report of Consultation and October 2011 SSA Medical Treatment Records. He then sought a second opinion for his back problems, and it was noted that the Veteran walked with a limp, and tilting of the spine. See January 1987 Correspondence of Orthopedic Surgeon. In April 2006, a physiatrist confirmed a facet joint disease of the spine, but also found an impression of a muscular-type low back pain, that may have an association with extremely tight hamstrings and iliopsoas, worse on the left than the right side. During a VA examination for the knees in October 2013, the examiner noted that his chronic knee pain had resulted in an antalgic gait. In May 2017, the Veteran obtained an opinion by a private doctor for his low back condition. The Veteran reported that his back pain first began in the mid-1980s, that had been continuous but worsened over time. The doctor provided a medical research paper, and explained that limping causes a shift of the body's center of gravity towards the affected leg, with an increased muscle pull that can cause or aggravate degenerative changes across the lumbar discs. After review of the claims file, to include the Veteran's medical history of both the back and knees, he opined that the Veteran's "chronic back pain has more likely than not been caused by and/or permanently aggravated by his service connected left knee instability and tricompartmental osteoarthritis." In May 2018, the Veteran also submitted the lay statement of his sister, indicating that the Veteran complains about the pain in his knees, and that she observes his frustration and that "when he walks he favors one side." The Veteran was finally afforded a VA examination in December 2019. The examiner determined a diagnosis of IVDS, but indicated a normal gait. The nurse practitioner stated that in her opinion, the Veterans back disability is less likely than not proximately due to or aggravated by the Veterans left knee disability. As rationale, she points to back pain that began as a work injury in the mid-1980s, and that his back condition was aggravated by continued overuse at his work in construction, obesity, and smoking, rather than by his left knee disability. In July 2020, an addendum opinion was obtained by a VA doctor. The examiner checked "No" to a current or prior diagnosis of a thoracolumbar spine condition. He then opined that it is evident from the available records that the Veteran's low back complaints were initiated by a work-related accident long after separation from military service. He also stated that the cause of his current back conditions can be attributed to the Veteran's advancing age, and that the orthopedic literature does not support the contention that unilateral or bilateral knee pain, arthritis, or an antalgic gate causes or aggravates the conditions that underlie the Veteran's back complaints. The Board finds that the private opinion from May 2017 to be persuasive as to a secondary aggravation nexus, at least to an equipoise standard, as it is based on an accurate medical history and consideration of medical knowledge, coupled with a comprehensive explanation. While the evidence does not show secondary causation, when reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's back condition is aggravated by his service-connected left knee instability and tricompartmental osteoarthritis. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. While the record is consistent that the Veteran's back pain started after service while working in construction and due to a lifting incident in the mid-1980s, rather than directly caused by the left knee disability, the evidence is at least in equipoise that his left knee condition has aggravated and worsened his back condition. Accordingly, the Board concludes that service connection for the Veteran's IVDS is warranted on a secondary aggravation basis. The Board notes that 38 C.F.R. § 3.310 (b) contemplates a baseline to assess the severity of a nonservice-connected disability that is aggravated by a service-connected disability. However, the Board determines that this is more akin to a downstream rating aspect of the claim that should be addressed in the first instance by the RO following implementation of the instant decision. 4. Service connection for a left leg disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative at any time before the Board promulgates a decision. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. In September 2021, the Veteran submitted a statement in support. In doing so, the Veteran stated: "I would like to withdraw the issues of left leg disorder which was remanded by the Board of Veteran's Appeals on 3/31/2021 and included on the Supplemental Statement of the Case dated 5/14/2021." The Board finds that the Veteran's withdrawal of the issue of a left leg disorder on appeal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The withdrawal of the claim on appeal is an express statement in writing that the Veteran no longer wants to pursue the claim for a left leg disorder on appeal. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this appeal. Accordingly, the appeal of service connection for a left leg disorder is dismissed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.