Citation Nr: 21071551 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-17 182 DATE: November 30, 2021 ORDER Service connection for persistent depressive disorder with anxious distress is granted. Service connection for vertigo is denied. REMANDED Service connection for rod in the right leg is remanded. FINDINGS OF FACT 1. A medical nexus exists between the Veteran's persistent depressive disorder with anxious distress and a lightning strike during a period of service. 2. The Veteran's vertigo does not constitute a permanent disability and did not constitute one during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for persistent depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309. 2. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to May 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran did not desire a personal hearing before the Board. These matters were previously before the Board, and, in May 2019, the Board remanded these matters for further development. Further development in substantial compliance with the Board's previous remand instructions has been completed. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like psychoses and diseases of the nervous system, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for persistent depressive disorder with anxious distress is granted. At issue is whether the Veteran is entitled to service connection for depressive disorder with anxiety symptoms is granted. The Veteran underwent a VA examination in April 2021. The Veteran was diagnosed with persistent depressive disorder with anxious distress, and the examiner opined that the Veteran's depressive disorder symptoms and associated functional impairments was the result of the neurological effects, treatment measures, and mobility restrictions produced by the lightning strike while he was active in the military. The Board notes that VA previously conceded that the Veteran's reported lightning strikes occurred. See May 2019 Board Decision. The weight of the evidence indicates that the Veteran is entitled to service connection for persistent depressive disorder with anxious distress is granted. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 2. Service connection for vertigo is denied. At issue is whether the Veteran is entitled to service connection for vertigo. The Veteran's treatment records do include isolated reports of vertigo such as in June 2020, but the Veteran's treatment records are otherwise silent for a permanent diagnosis of vertigo throughout the period on appeal. The Veteran underwent a VA examination in January 2021, and the examiner opined that the Veteran did not have a chronic diagnosis of vertigo. The record is otherwise silent for another VA examination or other competent medical opinion diagnosing the Veteran with vertigo. A current diagnosis of a permanent disability or a diagnosis of a permanent disability during the pendency of the appeal is the cornerstone of a claim for service connection, and without one the Veteran's claim for service connection cannot prevail. Therefore, service connection for vertigo is denied. Degmetich v. Brown, 104 F.3d 1328 (1997). REASONS FOR REMAND Service connection for rod in the right leg is remanded. At issue is whether the Veteran is entitled to service connection for a rod in the right leg. The Veteran has a rod in his right leg to repair a leg injury after the Veteran fell off a roof. The Veteran alleges that this was due to shaking caused by sustaining a lightning strike during a period of service. The Veteran underwent a VA examination in January 2021. The examiner opined that it would be speculation to suggest that a lightning strike could have led to the Veteran's reported shaking. Nevertheless, the Veteran has been granted service connection neuropathy of the bilateral upper and lower extremities. See September 2021 Rating Decision Code Sheet. This condition is evaluated based on varying degrees of incomplete and complete paralysis of the Veteran's limbs. 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8540. Therefore, this raised the question of whether or not the Veteran's neuropathy of the bilateral upper and lower extremities could had incapacitated the Veteran enough to lead to the Veteran falling off a roof, and, thus, whether or not the Veteran is entitled to service connection on a secondary basis. 38 C.F.R. § 3.310. Once VA undertakes the effort to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one and a adequate one is sufficiently detailed to ensure that VA's evaluation of the Veteran's claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this matter must be remanded in order to address these concerns. The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran's rod in the right leg is proximately due to or aggravated by the Veteran's previously service-connected disabilities? Why or why not? (b.) If the Veteran's rod in the right leg is aggravated by the Veteran's previously service-connected disabilities, then please provide a baseline estimate of the severity of the Veteran's rod in the right leg absent any aggravating effects. Please explain why. (c.) What is the medical significance, if any, of the Veteran's neuropathy of the bilateral upper and lower extremities? Why? (d.) Did the Veteran's paralysis (be it complete or incomplete) of the bilateral upper and lower extremities contribute to the Veteran falling of a roof? Why or why not? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.