Citation Nr: 21007451 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-37 346 DATE: February 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected residuals of a right ring finger fracture is denied. REMANDED Entitlement to a right elbow disability, to include as secondary to service-connected residuals of a right ring finger fracture is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder, persistent depressive disorder diagnosed in February 2020, is etiologically related to service or secondary to service-connected residuals of a right ring finger fracture. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to October 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2010 and June 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Board denied service connection for a psychiatric disorder and a right elbow disability. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the October 2017 decision as to the denials of service connection for a psychiatric disorder and right elbow disability. The Court granted the JMR in an August 2018 order. As such, the matter is back before the Board. The Board previously remanded the case in March 2019 for further development consistent with the July 2018 JMR. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for an acquired psychiatric disorder, secondary to service-connected residuals of a right ring finger fracture is denied. The Veteran is seeking to establish service connection for an acquired psychiatric disorder. He contends his acquired psychiatric disorder is secondary to his service-connected residuals of a right ring finger fracture. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order 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); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was afforded a VA examination in February 2016. The Veteran reported he had tried to commit suicide several times when he first came out of service. He noted suicidal ideation when angry but denied intent or plan. The Veteran was not forthcoming about the dates of events when asked. He denied current suicidal or homicidal ideation, intent, or plan. The Veteran denied a mental health history, including hospitalizations for mental health problems. He indicated he spoke to a nurse two or three years ago about anxiety and depression. The Veteran reported that a counselor spoke to him and other veterans twice a month. Following examination, the VA examiner determined that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for major depression disorder or generalized anxiety disorder. The examiner explained that the Veteran reported feeling depressed “like once a month,” and did not endorse any other symptoms related to a depressive disorder. The Veteran was vague about anxiety symptoms, reported feeling anger about anything, having no patience, and yelling at people. The examiner noted that while there was documentation of military treatment for a right finger injury in July 1962, there was no documentation of a mental health condition, including depression or anxiety. The Veteran denied frequent depression, excessive worry, or nervous trouble of any sort on his separation examination. In addition to the lack of evidence reflecting a psychiatric condition in service, the examiner noted there was no documentation in civilian medical records of depression or anxiety. VA treatment records first noted depression in March 2013. The examiner pointed to specific treatment records in 2007 to 2012 reflecting negative depression screens. A September 2012 treatment record noted that the Veteran stated he had been having anxiety and getting upset easily. In a March 2013 mental health note, the Veteran reported he had been depressed for 20 years due to his right-hand injury that affected his work as a carpenter. Problems with his hand had increased in the last two to three years. A May 2014 treatment note indicated the Veteran had been compliant with his medication and was feeling improved. He denied feeling depressed, anxious, sleep issues, and suicidal or homicidal ideation. In October 2015, the Veteran denied current depression or anxiety. Following review of the record and examination of the Veteran, the examiner determined that the Veteran did not currently have, nor had he ever had, a diagnosed mental disorder. In the August 2018 JMR, the parties noted that the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder had been denied because the Veteran did not have a diagnosed condition. However, since the Board’s October 2017 decision, the Federal Circuit had issued Saunders v. Wilkie, which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the parties determined that the Board needed to address the application of Saunders to the Veteran’s claim of service connection for an acquired psychiatric disorder. In March 2019, the Board remanded the Veteran’s claim for a VA examination that discussed the functional impact of his reported psychiatric symptoms and an opinion on whether any functional impact was associated with the Veteran’s service or a service-connected disability. Pursuant to the March 2019 remand, the Veteran was afforded a VA examination in February 2020. The Veteran reported a similar history as noted in the February 2016 VA examination. He indicated that he tried to commit suicide many times after service, most recently being in July 2019 when he held a gun to his head while depressed and feeling helpless and worthless. The Veteran reported that while in service, he frequently had conflict with a sergeant in basic training. The Veteran reported that the sergeant would always grab his toes and startle him. On one occasion he was startled, jumped up, and began strangling the sergeant. The Veteran told the sergeant not to mess around with him. Following examination, the VA examiner noted that the Veteran was talkative but had trouble being specific with details, such as the name of his group therapist and the last time he was in therapy. The examiner noted the most recent treatment records were from 2013. The examiner noted it was not clear whether the Veteran was a reliable historian. At times, the Veteran seemed to indicate he had not been to group therapy in a while, and at other times he made it seem as if he was currently attending group therapy sessions. The Veteran reported that he injured his finger in service while playing baseball. He was able to manage a hammer until 1988 before the condition worsened and since then, he had not done anything. The Veteran reported that he loved retiring but had to stay away from people that made him furious or angry. He asserted that he had never denied depression. The Veteran indicated that his mood was affected by the numbness in his arm. He noted he was suicidal in July 2019 and put a gun to his head, but he could not remember why he was suicidal. The Veteran reported he was more depressed than he was three years ago but could not attribute it to anything in particular. The examiner indicated that the Veteran’s reported stressor did not meet the criteria for a diagnosis of PTSD but that some of his symptoms seemed to be associated with his anger or emotional state related to his current functioning and current physical problems. The examiner noted that the Veteran was reporting symptoms on the PHQ-9 that amounted to severe symptoms of depression and his total score on the PCL-5 indicated very severe symptoms. The examiner added that there was no record of scores as severe as the scores he endorsed during the VA examination. The VA examiner diagnosed the Veteran with persistent depressive disorder, severe, noting that this included anxious distress and that the Veteran likely had at least one major depressive episode in the last 12 months. Although the examiner indicated that the Veteran’s diagnosed condition was less likely than not related to his service-connected residuals of a right ring finger fracture, he also added that he was unable to determine whether the Veteran’s mental health condition was at least as likely as not proximately due to the Veteran’s service-connected residuals of a right ring finger fracture, to include his inability to perform his normal duties. The examiner explained that during the interview, the Veteran gave conflicting reports about being depressed for some time and being happy about retirement. The examiner noted that although the Veteran reported frustration with current activities due to limitations of his finger and memories or frustrating times in service, particularly how he was treated by the sergeant, it was unclear that the Veteran’s service-connected finger injury was the proximate cause of his depression. The examiner indicated that the clearest baseline of the Veteran’s psychiatric disorder was reflected by his reports of mild depression and his PHQ-9 score in 2013. The examiner noted that it seemed that the Veteran was quite fine, by his own reports, when he initially retired in 1988. There was no indication in treatment records until 2013 that the Veteran was beginning to show a pattern of depression. The examiner noted that the Veteran’s depression was certainly more severe now than it was then, and that frustration related to his right ring finger was certainly a contributing factor. Accordingly, the examiner opined that the Veteran’s persistent depressive disorder with anxious distress and probable periodic major depressive episodes was at least as likely as not aggravated beyond its natural progression by his service-connected residuals of a right ring finger fracture, to include the Veteran’s inability to perform normal duties. In April 2020, the RO determined that an additional VA medical opinion was required, as the February 2020 VA examiner’s rationale indicated that the Veteran’s complete record had not been reviewed and therefore was not fully considered when forming the requested opinions. Specifically, the examiner had indicated that there were no records for review beyond 2013. In November 2020, following a review of the Veteran’s complete record, a VA examiner opined that the Veteran’s persistent depressive disorder, diagnosed in 2020, was less likely than not related to his service-connected residuals of a right ring finger fracture. The examiner noted that the Veteran had no diagnosis of a mental disorder as recently as 2016. The Veteran retired in 1988 due to his hand, following many years as a carpenter which could cause contact injuries. However, depression was not recognized for over 22 years after he stopped working. The examiner noted that although the Veteran’s hand issue may impact his moderate symptoms, there was no evidence that his hand issues were the etiology of his persistent depressive disorder, as the diagnosis was recent. Further, the examiner opined that the Veteran’s persistent depressive disorder was not aggravated beyond its natural progression by his service-connected residuals of a right ring finger fracture. There was no evidence of depression in service and no evidence that depression existed during the Veteran’s pre-retirement years. While he had injured his right hand in service, it was likely than his work as a carpenter for many years had an effect on his right hand. The examiner noted that the evidence did not show that the Veteran’s depression was entirely due to any effects of his right finger injury, as depression was not diagnosed until 2020 and there was no diagnosis at all in 2016, as reflected by the February 2016 VA examination. The examiner again noted that it was less likely than not that the Veteran’s service-connected residuals of a right ring finger fracture caused his depression, but also indicated that while his service-connected residuals of a right ring finger fracture may have some undifferentiable influence on his current depression as a form of stress, it did not exacerbate the condition beyond its expected course. Finally, the examiner noted that symptoms of anxiety, depression, suspiciousness, sleep impairment, mild memory loss, flat affect, mood disturbance, trouble establishing and maintaining relationships, trouble adapting to stressful circumstances, and previous, not current, suicidal ideation in 2019 were associated with his diagnosis, as noted by the February 2020 VA examiner. The functional impact of these symptoms was low energy, low concentration, and difficulty getting along with others, which could cause the Veteran to have difficulty completing job tasks and getting along with customers or employees in a work setting. The examiner noted the Veteran might reject authority because of anger problems related to depressed mood. He might be tired at work and be less effective in job tasks, even if in an isolated position. Following a review of the record, the Board finds that the evidence does not support entitlement to service connection for an acquired psychiatric disorder. Since the July 2018 JMR, the United States Court of Appeals for the Federal Circuit issued a precedential decision that holds a diagnosis that conforms to the DSM-5 is required for compensation for psychiatric disabilities, even though its holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) is not limited to pain. See Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. Aug. 11, 2020). In Martinez-Bodon, the Federal Circuit explained the definition of disability in Saunders, which defines a disability as functional impairment in earning capacity, is limited by VA’s authority to adopt and apply its rating schedule, which has been used to limit compensation for psychiatric disabilities to diagnoses that conform to the DSM-5 criteria. Although the Veteran reported symptoms of psychiatric disability, he did not have a diagnosed psychiatric condition prior to the February 2020 VA examination. Treatment records do not reflect any psychiatric diagnoses and the February 2016 VA examiner indicated that the Veteran did not currently have a mental disorder, nor had he ever been diagnosed with a mental disorder. The examiner specifically noted that the Veteran did not meet the DSM-5 diagnostic criteria for major depression disorder or generalized anxiety disorder. Further, the examiner noted that the Veteran’s treatment records did not contain documentation of a mental health condition and there were multiple negative depression screens from 2007 to 2012. The Board notes that the Veteran reported experiencing depression and anxiety since the 1960’s and that he had attempted suicide multiple times since service. However, the record does not reflect any evidence of suicidal ideation or suicide attempts, nor does the record contain any complaints of or treatment for mental health until September 2012 when the Veteran was assessed as irritable and prescribed anxiety medication. A psychiatric diagnosis was established by the February 2020 VA examination and while the examiner opined that the Veteran’s persistent depressive disorder was at least as likely as not aggravated beyond its natural progression by his service-connected residuals of a right ring finger fracture, this opinion is afforded limited probative weight, as the examiner only considered the Veteran’s record up until 2013. Of greater probative value are the findings of the February 2016 VA examiner, who reviewed the entire claims file and examined the Veteran prior to finding he was without a diagnosed mental disorder. Additionally, of greater probative value are the opinions of the November 2020 VA examiner, who reviewed the Veteran’s entire claims file, including treatment records and past VA examinations, when forming the requested opinions. The November 2020 examiner explained that the Veteran did not have a diagnosed psychiatric disability until the February 2020 VA examination and was noted to have no diagnosis of a mental disorder as recently as 2016. The examiner noted that the Veteran retired in 1988, but depression was not recognized for over 22 years after he stopped working. Further, the examiner determined that while the Veteran’s service-connected residuals of a right ring finger fracture may have some undifferentiable influence on his depression as a form of stress, it did not exacerbate the condition beyond its expected course. Accordingly, the Board concludes that the claim of entitlement to service connection for an acquired psychiatric disability, secondary to service-connected residuals of a right ring finger fracture must be denied as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to a right elbow disability, to include as secondary to service-connected residuals of a right ring finger fracture is remanded. Pursuant to the July 2018 JMR, the Board remanded the issue of entitlement to service connection for a right elbow disability in March 2019 to address the Veteran’s assertion that his service-connected residuals of a right ring finger fracture caused neurological difficulties that affected his right elbow. A VA medical opinion was issued in October 2019. The VA examiner opined that “insofar as correlation between the Veteran’s right fring finger fracture […] and his right elbow epicondylitis, there is none.” The examiner explained that anatomically, injury to the radial, median, or ulnar nerves or their branches could have occurred resulting in some numbness and/or decreased range of motion to the fingers; however not to the elbow resulting in a lateral epicondylitis or much less to the shoulder or cervical area. The examiner listed select treatment records from the Veteran’s file without explanation as to how they supported the examiner’s findings and opinions. The Board finds that this is not adequate rationale for the requested opinions regarding whether the Veteran’s right elbow disability was caused or aggravated by his service-connected residuals of a right ring finger fracture. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand for an addendum opinion is warranted. Finally, while on remand, the Veteran should be given another opportunity to submit, or authorize VA to obtain on his behalf, his private treatment records from Dr. P. G., associated with the Orthopedic Surgery & Sports Medicine Clinic of South Texas, and Dr. R. F. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers, specifically private treatment records from Dr. P. G., associated with the Orthopedic Surgery & Sports Medicine Clinic of South Texas, and Dr. R. F. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right elbow disability. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s right elbow disability is caused by his service-connected residuals of a right ring finger fracture? An opinion should be provided for each diagnosed right elbow disability, to include but not limited to right elbow osteoarthritis, epicondylitis, and tendinitis. b) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s right elbow disability is aggravated by his service-connected residuals of a right ring finger fracture? An opinion should be provided for each diagnosed right elbow disability, to include but not limited to right elbow osteoarthritis, epicondylitis, and tendinitis. The examiner should address the Veteran’s contentions that his right elbow disability is related to neurological difficulties caused by his service-connected residuals of a right ring finger fracture. Opinions should be supported by clinical data, medical literature, and/or references to treatment records as deemed appropriate. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.