Citation Nr: 21074889 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-12 556 DATE: December 16, 2021 REMANDED Entitlement to service connection for depressive disorder, not otherwise specified (NOS), to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to service-connected back disability, is remanded. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to service-connected back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues were last before the Board in July 2021. The Board remanded the issues on appeal for addendum medical opinions. However, as discussed below, the Board finds that remand is necessary for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for depressive disorder, NOS, to include as secondary to service-connected disabilities, is remanded. The Veteran seeks service connection for a depressive disorder, NOS, claimed as anxiety and irritability, as related to his military service. See December 2011 private medical records. The Veteran, through his representative, also contends the Veteran's psychiatric condition is related to his service-connected disabilities. See March 2019 appellate brief. Specifically, the Veteran, through his representative, contends that the Veteran's depressive disorder is related to his vertigo (and tinnitus), highlighting a February 2013 VA psychiatry treatment note with a multiaxial assessment that listed chronic vertigo in the Axis IV diagnostic impression. Id. The Veteran was initially afforded a VA examination in June 2013. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Inadequate medical examinations include examinations that provide unsupported conclusions. Id. The Veteran reported he was referred to mental health services about 5 months prior to discharge because his wife left him alone and returned to Puerto Rico without him or their young children. See June 2013 VA examination. The Veteran could not recall whether he was seen by a social worker or other mental health professional at the time. Id. The Veteran reported that his wife abandoning him and their children in 1979 while on active duty was the event which most affected him. Id. The VA examiner diagnosed the Veteran with depressive disorder, NOS, and listed no contact with adult children for over 10 years in the Axis IV diagnosis. Id. The VA examiner opined that the Veteran's psychiatric condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Id. As rationale, the VA examiner noted the Veteran was given a hardship discharge but was never seen by a mental health professional, and did not begin psychiatric treatment until 2008, 29 years after discharge from service. Id. The VA examiner also noted the Veteran only reported symptoms for over a year and could not name any acute stressors. Id. However, the June 2013 VA examiner did not provide an opinion regarding secondary service connection. Additionally, the Veteran's representative argues that the United States Court of Appeals for Veterans' Claims (Court) has noted that by listing a veteran's military experience as part of an Axis IV assessment (regarding severity of psychosocial stressors), a physician, in essence, made a determination that the veteran's period of service was an "etiologically significant psychosocial stress" contributing to the current psychiatric condition diagnosed under Axis I. See Hernandez-Toyens v. West, 11 Vet. App. 370 (1998); March 2019 appellate brief. However, in this case, the June 2013 VA examiner listed no contact with adult children for over 10 years in the Axis IV diagnosis. See June 2013 VA examination. The Veteran's service treatment records document the Veteran's complaints of "nerves," and that he had domestic problems at home. See August 1979 service treatment records. They also note that the Veteran had situational stress and was referred to "MHCS." Id. As such, the Board finds an addendum medical opinion is necessary to address direct service connection. In regard to secondary service connection, the Veteran was afforded a second VA examination in August 2020 and March 2021 addressing secondary service connection. However, the Board previously determined the August 2020 and March 2021 VA medical opinions inadequate for decision making purposes. The Veteran was afforded an addendum VA medical opinion in September 2021. The VA examiner opined that the Veteran's psychiatric condition was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. See September 2021 VA addendum medical opinion. As rationale, the VA examiner noted the Veteran's condition was not due to, secondary, incurred, or associated in any way to the service-connected tinnitus, vestibular disorder, or a low back disability with lower extremity radiculopathy; and the Veteran did not seek psychiatric care in 2019, almost 40 years after service and the events that led to service connected disabilities. Id. The VA examiner noted there was no relation between the Veteran's service-connected disabilities and his mental condition diagnosed around 2019. The VA examiner noted the Veteran's service-connected disabilities are in different time frames, etiology, pathophysiology and anatomical systems. Id. In regard to aggravation, the VA examiner opined that the Veteran's psychiatric condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. Id. As rationale, the VA examiner again noted the Veteran sought treatment in 2019, forty years after his military discharge and the events that led to his service-connected condition; a temporal relationship between the psychiatric condition and the service-connected physical condition was not established; the service-connected disabilities preceded for 40 years prior to the Veteran's psychiatric condition; and the Veteran's psychiatric condition is mild, stable, and responding without any special measure. Id. The Board finds the September 2021 VA examiner's medical opinion inadequate for decision making purposes. First, the June 2013 VA examiner previously acknowledged that the Veteran sought mental health treatment in 2008, and not 2019. The September 2021 VA examiner appears to rely on a finding that the Veteran did not seek psychiatric treatment until 2019 and is therefore based on an inaccurate factual premise. Second, the VA examiner did not address the Veteran's VA treatment records that indicate the Veteran's physical conditions contribute to his mental health condition. For example, the Veteran reported severe anxiety and depression, and suicidal ideation in January 2018. See January 2018 VA treatment records. A February 2018 mental health evaluation notes the Veteran was hospitalized for depression in December 2017 and January 2018 for depression. See February 2018 VA treatment records. It was also noted that current chronic medical conditions were a stressor. Id. In August 2019, the Veteran reported he was dealing with different body pain that affects him and stated dealing with health issues was a significant stressor. See August 2019 VA treatment records. A February 2013 VA psychiatry treatment note with a multiaxial assessment of the Veteran's depressive disorder listed chronic vertigo in the Axis IV diagnostic impression. See February 2013 VA treatment records. The Veteran's VA treatment records indicate the Veteran's physical conditions at least contribute to his psychiatric condition, and his psychiatric condition was not mild or stable. However, it remains unclear whether it is at least as likely as not that the Veteran's psychiatric condition is secondary to his service-connected disabilities. Third, the Veteran provided lay statements from friends who have known the Veteran for a significant amount of time that indicate the Veteran was suffering from mental health conditions and multiple physical conditions since returning from service. See October 2019 VA buddy statements. Finally, the VA examiner responded to an inaccurate question regarding aggravation. There is no evidence to suggest the Veteran's psychiatric condition pre-existed his service and the Veteran is presumed to have been in sound condition upon entering service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Therefore, the Board finds the September 2021 VA medical opinion inadequate for decision making purposes and remand is necessary to obtain an addendum medical opinion addressing secondary service connection. See Nieves-Rodriguez, 22 Vet. App. at 302; Stegall, 11 Vet. App. at 271. Entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to service-connected back disability is remanded. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to service-connected back disability is remanded. The Veteran seeks service connection for peripheral radiculopathy of the bilateral upper extremities. The Board previously noted that the Veteran was afforded multiple VA examinations identifying the Veteran has a current diagnosis of bilateral upper extremity radiculopathy. See June 2013 and February 2021 VA examinations. The Board previously noted the June 2013 VA examination did not adequately address secondary service connection. A December 2011 private treatment record suggests a link between the Veteran's service-connected back condition and his radiculopathy. Specifically, the Veteran's private physician indicated the Veteran's back condition causes bad posture, loss of correct alignment, and loss of curvature of cervical, thoracic, and lumbar lordosis and could cause radiculopathy and neuropathy and degenerative changes of the neck. See December 2011 private treatment records. The Veteran was afforded a VA neck conditions examination in September 2021. The VA examiner diagnosed the Veteran with cervical degenerative joint disease (DJD)/degenerative disc disease (DDD) and bilateral cervical radiculopathy. See September 2021 VA examination. The VA examiner opined that the Veteran's claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. Id. As rationale, the VA examiner noted the Veteran did not recall or describe injury to his neck during military service. Id. The VA examiner noted the Veteran is service-connected for lumbar strain, lumbar DDD, and bilateral lumbar radiculopathy related to a lifting injury while in service. Id. The VA examiner noted the medical literature does not show that having a lumbar DJD, DDD, or radiculopathy causes or induces cervical DJD, DDD, and radiculopathy. Id. The VA examiner noted the cervical spine functions independently of the lumbar spine. Id. However, the VA examiner does not address the December 2011 private treatment statement suggesting at least some relationship between the Veteran's service-connected lumbar strain and his cervical radiculopathy. Additionally, the VA examiner did not provide an opinion as to whether the Veteran's bilateral cervical radiculopathy of the upper extremities was aggravated, or worsened, by his service-connected lumbar strain. Therefore, the Board finds that remand is necessary to obtain an addendum medical opinion addressing secondary service connection, to include a clear aggravation opinion. See 38 C.F.R. § 20.802; see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the September 2021 VA medical opinion, or, if that examiner is unavailable, to another suitably qualified examiner, for completion of an addendum opinion to determine the nature and etiology of the Veteran's depressive disorder, NOS. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner should address the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's depressive disorder, NOS, had its onset during service or is otherwise causally or etiologically related to his active duty service. A complete and adequate rationale should be given for all opinions and conclusions expressed. The examiner must consider and address the Veteran's service treatment records, lay statements, and buddy statements. The examiner must consider and address the Veteran's VA treatment records noting no contact with adult children for over 10 years in the Axis IV diagnosis and his contention that it contributed to his Axis I diagnosis for depressive disorder, NOS. The examiner must also address the Veteran's August 1979 service treatment records which document the Veteran's complaints of "nerves," and that he had domestic problems at home. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's depressive disorder, NOS is proximately due to, or the result of, the Veteran's service-connected disabilities. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's depressive disorder, NOS is aggravated (worsened) by the Veteran's service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. The opinion offered must be based on a factual premise. The VA examiner must consider and address the Veteran's lay statements, buddy statements, and VA treatment records that indicate the Veteran's physical conditions contribute to his mental health condition. See January 2018, February 2018, and August 2019 VA treatment records. The examiner must also address the February 2013 VA psychiatry treatment note with a multiaxial assessment that listed chronic vertigo in the Axis IV diagnostic impression for the Veteran's depressive disorder. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 2. Forward the record and a copy of this Remand to the examiner who provided the September 2021 VA medical opinion, or, if that examiner is unavailable, to another suitably qualified examiner, for completion of an addendum opinion to determine the nature and etiology of the Veteran's bilateral radiculopathy of the upper extremities. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner should address the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral radiculopathy of the upper extremities is proximately due to, or the result of the Veteran's service-connected disabilities. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral radiculopathy of the upper extremities is aggravated (worsened) by the Veteran's service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. The examiner must consider and address the Veteran's December 2011 private treatment records suggesting a relationship between the Veteran's service-connected lumbar strain and cervical radiculopathy. The examiner must consider and address the Veteran's lay statements and VA treatment records. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.