Citation Nr: 21007776 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-59 605 DATE: February 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for lumbar radiculopathy of the right lower extremity, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for lumbar radiculopathy of the left lower extremity, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for right knee osteoarthritis, currently rated as 10 percent disabling, is remanded. Entitlement to an increased (compensable) disability rating for a service-connected scar of the forehead is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a disability of the cervical spine is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current psychiatric disorder is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to January 1987. The issues in this case come to the Board from a series of decisions issued by the Agency of Original Jurisdiction (AOJ) in April 2012, June 2012, and August 2012. In September 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded these issues for further development in April 2019 and in March 2020. Service Connection for a Psychiatric Disorder Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection “basically... means that... a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces... This may be accomplished by affirmatively showing inception or aggravation during service...” 38 C.F.R. § 3.303(a). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.” 38 C.F.R. § 3.303(d). A veteran may also establish a right to compensation on a secondary basis if the claimed disability is proximately due to, the result of, or aggravated by, a disease or injury which is service connected. See 38 C.F.R. § 3.310. At the hearing, the Veteran suggested that his feelings of depression began during his active duty service. One of his duties in the Marine Corps was to participate in burial ceremonies, and he testified that this made him depressed. His personnel records confirm his participation in burial details. He also submitted a disability benefits questionnaire, dated March 2013, which was apparently completed by a psychologist in private practice. To help assess the validity of these theories, the Board instructed the AOJ to obtain a new opinion in its April 2019 remand orders. Because the AOJ initially failed to obtain the requested opinion, the Board repeated the relevant instructions in March 2020. A VA psychologist examined the Veteran in July 2020. According to his report, the diagnoses were posttraumatic stress disorder (PTSD) and chronic adjustment disorder with mixed anxiety and depressed mood. In addition to the potential causes of mental illness noted in the remand orders, the examiner also discussed a suggestion from the Veteran that his PTSD was related to a sexual assault he experienced in service. In the medical history section of his report, the examiner wrote that a causal relationship between PTSD and military sexual trauma was less likely than not. The examiner believed it was more likely that the Veteran’s PTSD was the result of traumatic experiences in childhood or after his discharge from active duty. As for adjustment disorder with anxiety and depressed mood, the examiner wrote that the Veteran’s musculoskeletal pain (including pain associated with his service-connected lower back and right knee disabilities) “aggravates [the Veteran’s] anxiety and depression that started early in his military career after he suffered from [military sexual trauma] that was aggravated by being assigned to burial details later in his career.” In part three of the report (“Differentiation of Symptoms”) the examiner wrote that, although more than one mental illness had been diagnosed, it was not possible to differentiate which symptoms were associated with each diagnosis. The examiner also prepared an opinion questionnaire. Consistent with the statements about PTSD in the examination report, the examiner wrote that, in his opinion, it was less likely than not that PTSD was related to service. To support this conclusion, the examiner explained that the Veteran’s claimed military sexual trauma “was not supported by MST markers although he claimed his drinking and fighting was worse when he was sent to Okinawa. But from then on he was quickly promoted twice and continued to do well until his last year in the military . . . when he lost a stripe for drinking and fighting with the arresting MPs.” The examiner wrote that “it remains to be determined if his symptoms are due to a combination of latent pre military trauma . . . and post military trauma. . . .” The examiner also relied on the absence of “markers” to reject the theory that participation in burial details caused PTSD. As for chronic adjustment disorder with anxiety and depressed mood, the examiner marked “yes” on the questionnaire to indicate that this psychiatric disorder was the result of separate service-connected disabilities. The examiner wrote that this disorder was “proximately due to” the service-connected right knee and low back disabilities. In a supplemental statement of the case (SSOC), the AOJ continued to deny the Veteran’s psychiatric claim, relying on the July 2020 examiner’s unfavorable opinion with respect to PTSD. But the SSOC ignored the favorable opinion concerning chronic adjustment disorder with anxiety and depression. The Board may not deny service-connected benefits merely because the initial application misidentifies the specific clinical diagnosis associated with the claimed disability. The appropriate understanding of the Veteran’s request for benefits is to treat his psychiatric claim as a claim for compensation for any psychiatric disorder which is related to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The “markers” mentioned in the July 2020 examiner’s PTSD opinion and in the SSOC probably refer to 38 C.F.R. § 3.304(f)(5), which requires evidence of corroboration when a claim for service connection for PTSD is based on a claimed in-service personnel assault. Under this subsection, evidence of behavioral changes in service personnel records is one example of the kind of evidence that can satisfy the corroboration requirement. But 38 C.F.R. § 3.304(f)(5) expressly applies to claims for service connection for PTSD. It is significant that the text of the regulation does not mention claims for compensation for other kinds of mental illness. Moreover, 38 C.F.R. § 4.130 authorizes the payment of service-connected compensation for many psychiatric diagnoses other than PTSD, including chronic adjustment disorder (Diagnostic Code 9440). Because the July 2020 examiner’s favorable opinion supports a claim for service connection for persistent depressive disorder, not PTSD, and because, in general, the Board must interpret ambiguous regulatory language in favor of the claimant, see Hudgens v. Gibson, 26 Vet. App. 558, 567 (2014), the Board finds that corroboration in the form of personnel records showing in-service behavioral changes is not an essential requirement of the claim for service connection for chronic adjustment disorder with anxiety and depressed mood. Although the July 2020 examiner’s opinion on PTSD was unfavorable, he opined that it would be impossible to differentiate the symptoms associated with PTSD from symptoms associated with adjustment disorder with anxiety and depressed mood. When it is impossible to differentiate the symptoms of a service-connected disability from the symptoms of a disability unrelated to service, the Board must assume that the symptoms are attributable to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1992). Because of the favorable opinion of the July 2020 VA examiner, the evidence is at least evenly balanced as to whether the Veteran’s chronic adjustment disorder with anxiety and depression is related to active duty service. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’. . . , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). Accordingly, the Board will grant service connection for chronic adjustment disorder with anxiety and depression. REASONS FOR REMAND When an appeal is remanded, the claimant obtains the right to compliance with the Board’s remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its March 2020 remand, the Board instructed the AOJ to write to the Veteran to explain to him the results of its previous medical records request to Dr. Dizon, a physician identified in a July 2019 records release signed by the Veteran. This letter was necessary, the Board explained, so the Veteran could be informed that employees of Dr. Dizon’s office had indicated that they had records of the Veteran’s treatment but would not provide copies of those records until they received a $25 fee. This advice was necessary for the Veteran to have the opportunity to obtain and submit these records himself. The Board instructed the AOJ to explain to the Veteran that the opinion provided by Dr. Dizon in March 2019 was vague and to invite him to submit a new opinion from Dr. Dizon or any other evidence which the Veteran believed to be relevant to his claims. The AOJ mailed an appropriate post-remand letter to the Veteran in late March of 2020. But it seems clear from his recently obtained VA treatment records that the letter probably never reached him. These include records of a psychiatric hospitalization during the second and third week of March 2020, which describe the Veteran as homeless. According to the records, he left his previous residence (a transitional housing facility) after an altercation with a fellow resident and, when he telephoned the facility, he was told he was not allowed to return, even to recover his possessions. The Veteran’s mental health treatment records identify two subsequent addresses, the second of which was apparently the destination of the October 2020 SSOC. In general, the AOJ is considered to have to have constructive receipt of documents created by other offices or entities within the VA system, “when such records ‘could reasonably be expected to be a part of the record.’” Turner v. Shulkin, 29 Vet. App. 207, 217 (2018) (quoting Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992)). Because the March 2020 records of psychiatric hospitalization at a VA facility were added to the Veteran’s electronic claims file, the AOJ had constructive knowledge of his new address. Although the need for further delay is regrettable, the Board must remand the remaining issues in this appeal so that an appropriate letter can be mailed to the Veteran at his current address. After reviewing any newly obtained records and other evidence, the AOJ should consider the need for further development, including the potential need for addendum reports from the examiners who prepared reports concerning the Veteran’s right knee, thoracolumbar spine, lumbar radiculopathy, right shoulder, and cervical spine. Although the receipt of new evidence could change this, most of these reports appear to contain the necessary information to decide the remaining claims. The one exception is the unfavorable opinion of the August 2020 examiner concerning the etiology of the Veteran’s cervical spine disability. According to the examiner, it was unlikely that the current disability was related to service because the disability was “congenital” – a term which the examiner defined as “present at birth.” This conclusion contradicts a previous opinion, dated August 2019, describing the cervical spine disability as “a natural condition due to degenerative process with advancement of age (aging process).” A new opinion clarifying this inconsistency would be useful. Another problem with the August 2020 opinion is that a disease, even if it is of congenital origin, can be incurred or aggravated in service if its symptomatology did not manifest until after entry on active duty. See VAOGCPREC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990). Congenital or developmental defects are not considered diseases or injuries within the meaning of the legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Only congenital defects, as opposed to congenital diseases, are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries. The test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. “[C]ongenital or developmental defects are normally static conditions which are incapable of improvement or deterioration.” Id. The opinion states further: “A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration.” Id. For the cervical spine claim, a new opinion is needed both to address the earlier opinion attributing the disability to natural aging and to help decide questions concerning the possibility of superimposed injury and/or aggravation of a congenital disease or defect. The matters are REMANDED for the following action: 1. AFTER VERIFYING HIS CURRENT MAILING ADDRESS, write to the Veteran and explain to him the results of the AOJ’s prior request for medical records to Dr. Emmanuel Dizon, a physician identified in a July 2019 records release signed by the Veteran, who wrote a letter on the Veteran’s behalf in March 2019. Inform the Veteran that employees of Dr. Dizon’s office indicated that they have records concerning the Veteran’s treatment but will not release copies of the records until they received a fee of $25. The Veteran should be invited to obtain and submit these documents himself. Please also explain to the Veteran that the conclusion of Dr. Dizon’s March 2019 letter is vague – specifically, when the physician wrote that “this condition” was likely related to service, it is unclear to which claimed disability or disabilities he refers. Invite the Veteran to submit any new information from Dr. Dizon or any other evidence which he believes may be relevant to his claims. THE AOJ IS ADVISED THAT ITS LETTER TO THE VETERAN, DATED MARCH 30, 2020, WAS APPROPRIATE IN SUBSTANCE. BUT IT SEEMS CLEAR FROM THE RECORDS OF THE VETERAN’S MARCH 2020 PSYCHIATRIC HOSPTIALIZATION AT A VA FACILITY THAT HE LEFT THAT ADDRESS BEFORE THE AOJ MAILED THE LETTER. 2. Obtain and associate with the electronic claims file copies of all the Veteran’s VA treatment since August 2020. 3. Send the claims file to the nurse practitioner who examined the Veteran’s cervical spine in August 2020 and prepared an unfavorable opinion indicating that the current cervical spine disability was congenital. If the August 2020 examiner is unavailable for any reason, the AOJ should obtain the requested opinion from another qualified person. The examiner should review the claims file and prepare an addendum report responding to the following questions: (a) Is there unequivocal evidence that the Veteran’s current cervical spine disability (diagnosed in August 2020 as degenerative arthritis and intervertebral disc syndrome) existed prior to his entry into service? (b) If so, is there unequivocal evidence that the disorder DID NOT undergo an increase in severity (aggravation) in service? THERE IS NO NEED TO ANSWER THIS QUESTION IF THE EXAMINER GIVES AN AFFIRMATIVE ANSWER TO QUESTION (a). (c) If there is not unequivocal evidence that the disorder did not undergo an increase in severity (aggravation) in service, is it at least as likely as not (50 percent probability or higher) that the Veteran’s cervical spine disability was initially manifested during service or is related to any in-service event or occurrence, including the in-service automobile accident in which the Veteran sustained his service-connected lower back injury? THE EXAMINER SHOULD ONLY ANSWER THIS QUESTION IF HE OR SHE GIVES A NEGATIVE ANSWER TO QUESTION (a). (d) Is the Veteran’s cervical spine disability a defect or a disease, (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? (e) If a defect, then was there any superimposed disease or injury in connection with the congenital defect? The examiner should only answer this question if he or she concludes that the Veteran’s cervical spine disability is a congenital defect. (f) If a disease, then is it at least as likely as not (at least a 50 percent probability) that the Veteran’s cervical spine disability was aggravated during the Veteran’s military service? Aggravation indicates a worsening of the underlying condition as compared to a temporary increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The examiner should only answer this question if he or she concludes that the veteran's acoustic neuroma is a congenital disease. The examiner should provide a rationale fully explaining the medical evidence for his or her conclusions. IF THE EXAMINER CONCLUDES, AS INDICATED BY THE AUGUST 2020 OPINION, THAT THE CERVICAL SPINE DISABILITY “WAS PRESENT AT BIRTH” THEN HE OR SHE SHOULD ATTEMPT TO EXPLAIN THE APPARENT CONTRADICTION BETWEEN THIS STATEMENT AND THE SEPTEMBER 2019 OPINION, WHICH ATTRIBUTED THE VETERAN’S CERVICAL SPINE DISABILITY TO THE AGING PROCESS. 4. The AOJ should review any new information obtained as a result of the efforts described in these instructions and consider whether any additional development is needed before deciding the remaining claims, including the potential need to obtain addendum opinions or new examinations concerning the Veteran’s lumbar radiculopathy, lumbar spine, right shoulder, right knee, and/or forehead scar. 5. The AOJ must ensure that the opinions requested above comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.