Citation Nr: 21006177 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-31 963A DATE: February 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to the service-connected lumbar spine disability, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability is proximately due to his service-connected lumbar spine disability. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability as secondary to the service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1983 until his honorable discharge in January 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs Regional Office. The Board remanded this matter in June 2020 for additional development. Specifically, the Board instructed the Agency of Original Jurisdiction to obtain an addendum opinion to determine the nature and etiology of any acquired psychiatric disorder. The Board finds there has been substantial compliance with the June 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant law and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against a claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disability as secondary to the service-connected lumbar spine disability. The Veteran seeks service connection for an acquired psychiatric disability, claimed as depression. See March 2012 Correspondence. In the alternative, he contends his acquired psychiatric disability is secondary to his service-connected lumbar spine disability. See August 2013 Notice of Disagreement. The Board agrees. The Veteran underwent a private assessment with Dr. H.G., Ph.D., a clinical psychologist, in August 2013. On examination, Dr. H.G. determined the Veteran meets the diagnostic criteria for mood disorder due to a back condition. Dr. H.G. completed VA’s Mental Disorders Disability Benefits Questionnaire (Mental Disorders DBQ) to evaluate the Veteran’s psychiatric disability and provided a supplemental medical opinion as well. This opinion was extensive and included citation to various evidence, including medical literature. Dr. H.G., essentially concluded the Veteran’s service-connected back injury is more likely than not aggravating his debilitating mood disorder manifesting as depression. See August 2013 Mental Health DBQ and Medical Opinion. The Veteran underwent a VA examination in August 2014. Upon examination, the VA examiner determined the Veteran does not have a mental disorder diagnosis. On the examination report, the examiner did not record any current symptoms of an acquired psychiatric disability reported by the Veteran. The examiner did not provide a medical opinion because a mental disorder diagnosis was not rendered. See August 2014 VA Mental DBQ. Pursuant to the July 2018 remand, an examination was conducted in October 2019. The examiner stated the Veteran is not diagnosed with a mental health disorder. The examiner acknowledged the 2013 Mental Health DBQ provided a diagnosis of mood disorder due to back condition, but stated, however, the symptoms reported on the 2013 DBQ are not sufficient to warrant such a diagnosis. The examiner continued noting, the 2014 VA examination did not provide the Veteran with a diagnosis. See October 2019 QTC examination report. In June 2020, the Board found the October 2019 examiner’s reasoning circular and conclusory in nature; it did not provide the amount of clarity needed for the Board to adjudicate the appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the claim was remanded to obtain an addendum opinion. Pursuant to the June 2020 remand, an addendum opinion was obtained in August 2020. The examiner was asked to identify all current psychiatric diagnoses present since August 2012 and to review Dr. H.G.’s private assessment. Upon review, the VA examiner provided a negative nexus opinion. In support of this opinion the examiner stated at present, there is no evidence to support a current clinical diagnosis, according to the DSM-5 diagnostic criteria. The examiner stated at present, the Veteran is not engaged in mental health treatment nor has he been referred to mental health service by his primary care physician. The examiner continued, noted the Veteran’s medical records from his primary care physician are negative for both depression or anxiety between August 2013 and August 2019. Additionally, the examiner stated the “one-time, private opinion and DBQ completed by Psychologist H.G. cannot be considered as valid nor reliable as it is in the context of obtaining disability and not in a treatment-provider relationship.” After a thorough review of the lay and medical evidence of record, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, the evidence in this case is at least in equipoise with regard to whether the Veteran has a current diagnosis of an acquired psychiatric disability. The Board notes here, the presence of a chronic disability at any time during the claim process can justify a grant of service connection even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Regarding the first element of secondary service connection, the Board finds the preponderance of the evidence demonstrates the Veteran has been diagnosed with an acquired psychiatric disability. Despite the August 2020 examiner’s strong opinion regarding the “one-time private examination” of the Veteran, the Board can find no reason to discount the diagnosis rendered by Dr. H.G. in the August 2013 assessment of the Veteran. The Board has carefully reviewed the August 2013 examination report, which is similar to the Mental Health DBQ used by the VA examiner in August 2014, and the QTC examiner in October 2019, and it appears to be thorough, detailed, and sufficient for rendering a mental health diagnosis. In this regard, the Board specifically acknowledges Dr. H.G.’s August 2013 assessment was very detailed in documenting the Veteran’s medical history and current symptomatology. Moreover, the Board notes that Dr. H.G. is a board-certified clinical psychologist, who is trained at a doctoral level to render mental health diagnoses, and her report contains sufficient detail and rationale to support the diagnosis of an acquired psychiatric disability. In light of the above, the Board can find no reason to disregard the acquired psychiatric disability diagnosis rendered by Dr. H.G. at the August 2013 assessment. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that he has a current diagnosis of an acquired psychiatric disability. Turning to the second element, there is evidence the Veteran’s degenerative disc disease of the lumbar spine has been service connected. See October 2009 rating decision. The Veteran’s service-connected disability progressed to residuals of fracture of L-3. See September 2012 rating decision. Finally, with respect to the third element, the Board finds the evidence is in relative equipoise as to whether the Veteran’s acquired psychiatric disability is proximately due to his service-connected lumbar spine disability. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although the August 2020 examiner stated there is no evidence to support a current clinical diagnosis, the Board finds the examination to be of diminished probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The record does not demonstrate that Dr. H.G.’s evaluation was compromised by nature of being conducted in the “context of obtaining disability, and not in a treatment-provider relationship,” or as a result of any other relevant factors. Dr. H.G. is a clinical psychologist and is competent to diagnose and opine as to the etiology of the Veteran’s acquired psychiatric disability. Indeed, the Board takes notice that VA examiners regularly submit reports based upon “one-time” examinations completed in the “context of obtaining disability, and not in a treatment-provider relationship”, or even reports based entirely upon a review of the evidence in a claims file. Additionally, the Board emphasizes that while the August 2020 VA examiner’s rationale that Dr. H.G.’s report was not valid nor reliable because the report is “in the context of obtaining disability, and not in a treatment-provider relationship”, the August 2020 examiner offered an opinion based entirely upon a review of the evidence in the claims file, and in the context of obtaining disability and not in a treatment-provider relationship. The Board finds probative the May 2013 Mental DBQ, in which Dr. H.G. found the Veteran’s acquired psychiatric disability to be more likely than not related to his service-connected lumbar spine disability. The Board finds the favorable etiological opinion probative because it is supported by examination, medical file review, and sufficient rationale. Resolving doubt in the Veteran’s favor, the Board finds the Veteran’s acquired psychiatric disability is proximately due to his service-connected lumbar spine disability. Thus, secondary service connection is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the Nation, ‘in recognition of our debt to our Veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). As the Board has granted secondary service connection and the evidence does not support service connection on any other basis, no further discussion is needed regarding direct service connection, or any other theories for service connection, in this matter. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.