Citation Nr: 21009385 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-53 184 DATE: February 22, 2021 ORDER The claim to reopen service connection for depression is granted. Service connection for an acquired psychiatric disability is granted. Service connection for a low back disability is granted. Service connection for a right hand disability is granted. REMANDED A compensable initial rating for service-connected left fifth finger deformity (left hand disability) is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Evidence received since the prior final February 2013 denial of service connection for depression (which found no pertinent events or injuries in service) includes new VA treatment records that preceded those of record at the time of that denial and show a longer documented history of psychiatric complaints and treatment in addition to new sworn testimony relating to the onset and course of psychiatric symptoms. This evidence clearly relates to previously unestablished elements of service connection needed to establish service connection (in-service incurrence and nexus) and raises a reasonable possibility of doing so. 2. The Veteran has confirmed diagnoses for polysubstance dependence and unspecified depressive disorder. 3. Service records appear to corroborate the Veteran’s sworn testimony of behavioral issues and domestic or spousal violence therein (e.g., 30 days confinement in April 1987 for an assault charge, disobeying an order, and being AWOL for two days, complaints of spousal abuse, and March 1987 treatment for injuries that he attributed to being kicked in the head and nose repeatedly by his wife). He has also provided competent lay reports and sworn testimony indicating his current feelings of worthlessness and depression first began after failing out of his primary military occupational specialty. 4. VA treatment records document a long history of formal treatment dating back to 2004 and, notably, a 2008 record indicates roughly twenty years of alcohol abuse (placing onset in 1988, a year after discharge), which corroborates his competent and consistent lay reports (including in sworn testimony) of self-medication for depression symptoms that began during military service and have persisted since. Absent any convincing medical evidence or opinion to the contrary, and considering his normal enlistment examination means he is presumed sound upon entry to service, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s psychiatric symptoms began in service and persisted. 5. The Veteran has lumbar spine spondylosis confirmed by October 2014 imaging. 6. He has presented competent and credible lay testimony that he underwent sustained physical wear and tear in service while working as a “ration man,” routinely lifting 50 or more pounds for several hours a day on several days a week, and that his back pain began shortly after he started that job, never went away, and was unreported because he simply “soldier[ed] on.” 7. The only medical opinion of record is inadequate because the examiner found no current lumbar spine disability, without discussing the aforementioned October 2014 imaging results. Therefore, the Board finds the evidence is at least in relative equipoise as to whether the Veteran has lumbar spine arthritis that is presumptively related to service based on continuity of symptoms under 38 U.S.C. § 1112. 8. October 2014 X-rays confirm a current diagnosis of bilateral hand arthritis, including in the right first carpometacarpal joint (i.e., in the base of the thumb). 9. April 1987 service records document a swollen right hand with limited movement of the thumb, with a notation that a metacarpal fracture was to be ruled out (in-service injury). 10. The Veteran has presented competent and credible sworn testimony that he has had those same symptoms (pain, swelling, and limitation of motion) ever since that injury with no significant intervening injuries. The only pertinent medical opinion of record is inadequate because it appears the examiner did not review the October 2014 imaging report. Consequently, the Board finds the evidence is at least in relative equipoise as to whether service connection for right hand arthritis is presumptively warranted based on continuity of symptomatology under 38 U.S.C. § 1112. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for depression are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). 3. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). 4. The criteria for service connection for a right hand disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1981 to June 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision appealed in a timely January 2016 notice of disagreement (NOD) and perfected by a timely November 2018 substantive appeal in response to a statement of the case (SOC) earlier that month. In January 2021, a hearing was held before the undersigned; a transcript of the hearing is associated with the record. For the reasons outlined above, the Board grants service connection for a psychiatric disability, low back disability, and right hand disability, obviating the need for further discussion thereof at this time. TDIU has been raised by the Veteran during the pendency of an increased rating claim and, therefore, must be considered part and parcel of it under Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). REASONS FOR REMAND 1. A compensable initial rating for service-connected left fifth finger deformity (left hand disability) is remanded. The Veteran has not been examined in conjunction with this claim since January 2015 and has since suggested that his left hand disability involves more than just left fifth finger pathology. Therefore, a contemporaneous examination is needed. 2. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. This matter is inextricably intertwined with the initial rating appeal being remanded and, regardless, must be deferred at this time pending implementation of the instant service connection awards and assignment of initial ratings and effective dates. The matters are REMANDED for the following action: 1. Obtain all outstanding records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an appropriate physician to determine the current severity of his service-connected left hand disability. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW FUNCTIONING AND LIMITATION OF MOTION VARY WITH FLARE-UPS, REPEATED USE OVER A PERIOD OF TIME, OR OTHER SUCH CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The evaluation should also identify any other left hand pathology that is EITHER associated with his service-connected disability OR inseparable from it in terms of resulting impairment or etiology. Range of motion test results must be recorded in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING, including in the opposite, undamaged joint. If it is not feasible to perform range of motion testing in any of these circumstances, the examiner MUST EXPLAIN WHY. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner MUST ALSO comment on or describe, to the extent possible, the functional impact of the Veteran’s service-connected left hand disability during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. Finally, the examiner should comment on the expected impact of the service-connected left and right hand disabilities (and any other inseparable nonservice-connected left hand pathology) on his functioning in work settings, specifically identifying the kinds of work he would still be able to perform and those that would be untenable. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 3. Conduct any additional development needed to adjudicate the TDIU claim raised by the Veteran before readjudicating all claims remaining on appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.