Citation Nr: A21020580 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 210618-166989 DATE: December 28, 2021 ORDER Entitlement to service connection for persistent depressive disorder is granted. Entitlement to an effective date prior to April 11, 2018 for an award of service connection for left hip trochanteric bursitis is denied. Entitlement to an effective date prior to April 11, 2018 for an award of service connection for right hip trochanteric bursitis is denied. Eligibility for a special home adaptation grant is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to an initial rating in excess of 10 percent for left hip trochanteric bursitis disability is remanded. Entitlement to an initial rating in excess of 10 percent for right hip trochanteric bursitis disability is remanded. Eligibility for a specially adapted housing is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his persistent depressive disorder was incurred during his military service. 2. VA received intent to file forms on October 8, 2015 and on January 4, 2017; however, no formal claim for service connection was received within one year of any of those intent to file. 3. Another intent to file form was received by VA on and on April 11, 2018, and a formal claim of service connection for bilateral hip disorder was received in August 2018. 4. The Veteran does not have permanent and total service-connected disability which includes the anatomical loss or loss of use of both hands or is due to burn injuries or residuals of an inhalational injury; nor does he have a service-connected disability due to blindness in both eyes, with corrected central visual acuity of 20/200 or less in the better eye. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for persistent depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an effective date prior to April 11, 2018 for service connection for left hip trochanteric bursitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. 3. The criteria for entitlement to an effective date prior to April 11, 2018 for service connection for right hip trochanteric bursitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. 4. The criteria for eligibility for a special home adaption grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 2005 to March 2007. A rating decision was issued under the legacy system in a November 2018 and the Veteran submitted a timely notice of disagreement. The Veteran appealed the initial assigned ratings and effective dates for awards of service connection for right and left hip disabilities and the denial of his claims for specially adapted housing and special home adaptation grant. In February 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In April 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the February 2020 SOC. In August 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the February 2020 SOC. The appeal of a February 2020 rating decision on the issues of service connection for major depressive disorder and back disorder constitutes an initial decision under AMA. In February 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February 2020 rating decision. In June 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the February 2020 rating decision. In his June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the February 2020 SOC and February 2020 rating decision, on the respective issues, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to service connection for major depressive disorder The Veteran contends that he has a current acquired psychiatric disorder as a result of his period of service. He reports that his depression symptoms first manifested during his military service when had difficulty adjusting to military life and he was bullied by his supervisors and other shipmates and have led to the development of his current major depressive disorder. See VA 21-0781 (November 2018). The Veteran reports that his mental health had an onset during service, and those symptoms continued to persist and negatively impact his life since service. The Veteran further reports that he did not seek any treatment for his increasing mental health symptoms following his separation from service in 2007 until 2014, because he was not approved to be seen at VA clinics and he needed a referral. See Buddy / Lay Statement (September 2021). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board concludes that the Veteran has a current acquired psychiatric disability, identified as persistent depressive disorder that had an onset during his military service, resolving any doubt in his favor. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Private medical records show the Veteran has a current diagnosis of persistent depressive disorder. See Medical Treatment Record - Non-Government Facility (September 2021). Initially, the Board notes that is a question of whether the Veteran had a psychiatric disorder that pre-existed his military service. See C&P Exam (February 2019). To that extent, the Board notes that the Veteran's June 2005 report of medical examination (ROME) at enlistment shows that he received a normal psychiatric evaluation, and no reported history indicative of a mental health disorder was noted on the associated report of medical history (ROMH). See STR (May 2007). Under these circumstances, the Veteran is entitled to the legal presumption of soundness, and the burden shifts to VA to rebut the presumption. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). There is a two-pronged test for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable (obvious or manifest) evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. Wagner, 370 F.3d at 1089. The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon a "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304 (b)(1). The United States Court of Appeals for Veterans Claims (Court) has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). On review, the presumption of soundness has not been rebutted. The "clear and unmistakable" standard is a high one. In a February 2019 VA medical opinion report, the VA examiner concluded that there was clear and unmistakable evidence that the Veteran had a psychiatric disorder that pre-existed his military service. See C&P Exam (February 2019). However, this medical conclusion was based purely on the Veteran's reported history as there are no medical evidence contemporaneous to the alleged preservice symptomatology and there is no indication of such symptomatology until reported to medical professionals many years following service. In addition, the details concerning the severity of any such symptomatology are inconsistent, as the Veteran has also reported a sense of resilience through his difficult childhood, and he has reported that he felt optimistic about his future upon entering the military. See Buddy / Lay Statement (September 2021). Moreover, in a September 2021 private medical opinion report by C.M., PhD, which was based on review of the records and interview with the Veteran, she determined the following: "Despite the difficulties he experienced at home, [the Veteran] reports simultaneously experiencing a number of factors that likely contributed to his resiliency and the resolution of his distress, including healthy attachments via friendship, encouragement and support, athletic and academic success, and optimism about the future. Thus, it is my belief that the Veteran's grief and distress regarding his pre-service experiences resolved with the passage of time, his emerging maturity, and factors contributing to his resilience and coping. Subsequently, he reports experiencing a positive shift in his emotional disposition while in college and he entered service with no psychiatric symptoms." See Medical Treatment Record - Government Facility (September 2021). Considering the 2019 VA examiner's statement in view of the contemporaneous medical evidence, the Veteran's reported medical history, as well as the private medical opinion, the record cannot be said to clearly and unmistakably show a preexisting psychiatric disorder. Furthermore, the VA examiner failed to consider the second prong necessary to rebut the presumption of soundness. See Wagner, supra. Thus, the formidable burden of rebutting the presumption of soundness has not been met. Having determined that a psychiatric disorder did not preexist service, the Board must consider whether the Veteran's current persistent depressive disorder had its onset during service or is otherwise related to service. The Veteran's service treatment records (STRs) show that in January 2006, he sought mental health treatment for complaints of sleep impairment, and he proved a history of increased stress arising from his job, co-workers, medical problems concerning his hips, and death of a loved one. He expressed concerns about harming himself or others, but he denied any previous suicide attempts. A January 2006 Psychological Evaluation report shows that the Veteran was self-referred for complaints of "sleep difficulty" and having difficulty adjusting to [Navy] and life on the ship." He complained of feeling depressed, difficulty sleeping, decreased in eating, feeling guilty for joining Navy, mood swings, excessive worry, and thoughts about going "UA" or hurting himself or others. He was assessed with adjustment disorder with depressed mood. A February 2006 Psychological Follow-up report shows the Veteran continued to experience depressed mood and felt his insomnia was attributed to hip pain. An impression of adjustment disorder with depressed mood was continued. At the time of his January 2007 ROMH for separation, the Veteran denied any history of symptoms of a mental health disorder, and there is no associated ROME. In a March 2007 Report of Medical Assessment (ROMA) the Veteran marked that he felt his overall health was the "same" since his last physical examination, and the examining physician noted that no further evaluation was required. See STR - Medical (May 2007). Next, the record contains a favorable medical opinion that links the Veteran's current diagnosed persistent depressive disorder to his in-service mental health symptoms and diagnosis. In the September 2021 private medical opinion report, Dr. M. provided a lengthy and thorough discussion in support of the Veteran's claim for service connection. Dr. M. found that the Veteran's psychiatric symptom presentation emerged in the prodromal form while he actively served in the Navy with the onset of depressed mood, difficulty sleeping, anhedonia, feelings of guilt, lack of energy, poor concentration, decreased appetite, mood swings, panic attacks, and excessive worry as noted in the January 2006 Psychological Evaluation. She concluded that the Veteran's current persistent depressive disorder is at least as likely as not a result of the harassment that he experienced during his military service. See Medical Treatment Record - Government Facility (September 2021). The Board has considered the February 2019 VA medical opinion that the Veteran's current psychiatric disorder was less likely than not incurred in or caused by in-service injury, event, or illness. However, the VA examiner's rational was based on the determined that that the Veteran had a pre-existing psychiatric disorder, which as discussed above, was insufficient to rebut the presumption of soundness. See C&P Exam (February 2019). The medical is otherwise devoid of any rational in support of the medical conclusion, and it is considered inadequate for VA adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Given the foregoing, the Board finds that the Veteran's contentions that his current persistent depressive disorder first manifested during service are corroborated by the in-service documentation of depressed mood, sleep impairment, and excessive worry, and assessment of adjustment disorder with depressed mood. Both the February 2019 VA examination report and September 2021 private psychological evaluation report reflect that the Veteran continues to experience similar symptomatology of depressed mood, sleep impairment, and excessive worry recorded at the time of his in-service psychological evaluation. Moreover, the record contains a competent private medical opinion linking the Veteran's current diagnosed persistent depressive disorder to his in-service symptomatology and events during military service. Again, there is no probative evidence to the contrary of the September 2021 private medical opinion report. Pertinently, the Court of Appeals of Veteran's Claims (Court) has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The private medical opinion report is adequate for the purposes of adjudication. The private medical conclusion is based on a review of the claims file, including military records which document in-service treatment and complaints of mental health symptoms, and the Veteran's reported medical history. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A rationale was provided for the conclusion reached based on an assessment of the Veteran's current and in-service symptoms. The evidence is at least in equipoise in showing that the Veteran has persistent depressive disorder which was incurred during his military service. In resolving all reasonable doubt in the Veteran's favor, service connection for major depressive disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Given the above, the Board finds the evidence support the claim. Accordingly, the claim is granted. 2. Entitlement to an effective date prior to April 11, 2018 for service connection for left hip trochanteric bursitis 3. Entitlement to an effective date prior to April 11, 2018 for service connection for right hip trochanteric bursitis The Veteran seeks entitlement to earlier effective dates for the awards of service connection for right and left hip disabilities. See NOD (May 2019); VA Form 10182 Notice of Disagreement (June 2021). The Veteran and his representative have not provided any arguments related to his earlier effective date claims. The 2021 attorney brief did not mention the effective dates assigned, although the Veteran and his attorney continued the appeal process to the Board. See Motion to Advance on Docket (September 2021). Generally, the effective date of an award of a service connection claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If VA receives a complete claim application form within one year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155 (b). The record reflects that VA received an original intent to file a claim on October 7, 2015, and a VA notice letter regarding the intent to file was sent to the Veteran. See Notification Letter (October 2015). No formal application was received within one year of receipt of that intent to file. A second intent to file appears to have been received on January 4, 2017, and a VA notice letter regarding the intent to file was sent to the Veteran. See Notification Letter (January 2017). No formal application was received within one year of receipt of that intent to file. VA received a third intent to file form on April 11, 2018 (see Notification Letter (April 2018), and a formal application for disability benefits, VA Form 21-526EZ, was received on August 28, 2018. The Veteran sought service connection for the right hip and left hip disabilities via this form. Service connection for the right and left hip disabilities was granted in a November 2018 rating decision. The effective date assigned was April 11, 2018. Initially, the Board acknowledges that there is no copy of the October 2015, January 2017, and April 2018 intent to file forms in the Veteran's claims file. However, there are copies of the VA correspondences that were issued to the Veteran which reference the intent to file forms that were received on those respective dates noted above. The law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005). The VA correspondence acknowledging receipt of the intent to file forms provides sufficient evidence for the Board to reach the conclusion that such intent to file forms were actually received in October 2015, January 2017, and April 2018. Pertinently, the record reflects that a formal application was not received until August 28, 2018, which comes more than a year after the receipt of the October 2015 and the January 2017 intent to file, and an earlier effective date based on either of those intent to file is not warranted. See 38 C.F.R. § 3.155 (b). In sum, the VA received the intent to file claim on April 11, 2018, and within one year of receipt of that form, the Veteran submitted his completed application for service connection for the right and left hip disabilities. As such, the current assigned effective date of April 11, 2018 for awards of service connection is the earliest date upon which service connection can be granted. The preponderance of the evidence is against the claim for earlier effective dates for the grant of service connection for the right hip and left hip disabilities. There is no doubt to be resolved. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claims are denied. 4. Eligibility for a special home adaptation grant The Veteran seeks eligibility for a special home adaptation grant. See NOD (May 2019); VA Form 10182 Notice of Disagreement (June 2021). The Veteran and his representative have not provided any arguments related to his claim. The 2021 attorney brief did not mention the effective dates assigned, although the Veteran and his attorney continued the appeal process to the Board. See Motion to Advance on Docket (September 2021). A veteran may qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees (such a disability need not be permanent and total in nature); a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a (b). The Veteran is presently in receipt of service connection benefits for disabilities of the left hip and right hip, and now service connection for persistent depressive disorder. The Veteran does not have a permanent and total disability due to the any of the conditions listed under 38 C.F.R. § 3.809a. The Veteran's service-connected disabilities do not involve vision impairment, the loss or loss of use of the hands, or burn injuries. Thus, while the Board is sympathetic to the Veteran, entitlement to special home adaption grant must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 5. Entitlement to an initial rating in excess of 10 percent for left hip trochanteric bursitis disability is remanded. 6. Entitlement to an initial rating in excess of 10 percent for right hip trochanteric bursitis disability is remanded. 7. The claim for entitlement to specially adapted housing is remanded. Remanded Issues 5-7: Prior to the decision on appeal, the Veteran identified relevant outstanding private treatment records from Wake Med concerning his bilateral hip disabilities. See CAPRI (February 2019). A remand is required to allow VA to obtain these records. Therefore, remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the decision on appeal. See 38 C.F.R. § 20.802. 8. Entitlement to service connection for a back disorder is remanded. The issue of entitlement to a back disorder is remanded to correct a duty to assist error that occurred prior to the June 2020 HLR rating decision on appeal. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination prior to the June 2020 rating decision on appeal regarding whether the Veteran's current low back disability is related to his in-service complaints of back pain, or whether it is caused or aggravated by the Veteran's service-connected bilateral hip disability. Pertinently, the Veteran's service treatment records show he complained of back pain on several occasions. An October 2005 report of medical history (ROMH) shows that the Veteran complained of recurrent back pain, which he described as "pain in my hip spread[] to my back and caused my entire leg to lock-up." In February 2006, he again complained of low back pain accompany his bilateral hip pain for the past four months, and in June 2006, he complained of back pain for the past two and half weeks, with evidence of painful motion on clinical evaluation. See STR (May 2007). Post-service VA treatment records show that the Veteran has complained of low back pain since 2005, which was assessed as chronic low back pain. See CAPRI (February 2019). This evidence is sufficient to trigger VA's duty to assist to provide the Veteran with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). Based on this evidence associated with the claims file prior to the June 2020 rating decision, the Board finds that a VA examination and medical opinion are required to determine whether the Veteran has a current back disability that it etiologically related to his military service or is caused or aggravated by his service-connected bilateral hip disability. Also, a remand is required to correct a pre-decisional duty to assist error to obtain outstanding identified private treatment records from Wake Med regarding the Veteran's low back disorder. Therefore, remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to therating decision on appeal. See 38 C.F.R. § 20.802. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Wake Med. Make two requests for the authorized records from the identified medical facilities, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his back disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is any current back disability at least as likely as not related to service, including in-service complaints and treatment for back pain? In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. (b) Is any current back disability at least as likely as not proximately due to service connection right and left hip disabilities? (c) Is any current back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected right and left hip disabilities? C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray, 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.