Citation Nr: 21010127 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-34 776 DATE: February 24, 2021 ORDER Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected major depressive disorder, is remanded. Entitlement to service connection for a headache disorder, to include as secondary to service-connected tinnitus and/or major depressive disorder, is remanded. FINDING OF FACT The Veteran’s major depressive disorder is causally related to his period of active service. CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1979 to October 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the appeal for additional evidentiary development. In addition to the claims listed above, the Board also remanded the claim of entitlement to service connection for acid reflux. Thereafter, the RO granted service connection for acid reflux in an April 2020 rating decision. The Board further notes the Veteran submitted a VA Form 21-8940 in support of a claim for a total disability rating based upon individual unemployability (TDIU) in December 2020. This issue has not yet been adjudicated or developed by the RO. 1. Entitlement to service connection for major depressive disorder The Veteran contends he is entitled to service connection for major depressive disorder. He has acknowledged having a difficult childhood but has argued that he did not experience any mental health treatment or diagnoses until entering active duty. He contends he suffered hazing in service, began to have nightmares, and was ultimately sent to the mental health ward for evaluation. The Veteran contends that, after his separation from service, he started drinking heavily; experienced suicidal ideation; and had difficulty holding jobs. Service connection may be granted 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(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also 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). Additional laws and regulations apply when there is evidence that a disability preexisted service. A veteran is presumed to be in sound condition when entering service, except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304(b). If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). In determining entitlement to service connection, the claimant receives the benefit of the doubt so that the claimant prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). The Veteran’s January 1979 enlistment examination report does not indicate any history of mental health problems. In 1981, the Veteran was seen for nervous trouble, depression, auditory hallucinations, and homicidal and suicidal ideation. In November 1981, following a psychological evaluation, he was diagnosed with immature personality disorder and chronic alcoholism. Post-service VA treatment records from August 2012 show the Veteran was diagnosed with major depressive disorder; the note indicated the Veteran had been treated for depression for “many years.” The Veteran reported a difficult childhood; he stated he was abused and neglected by his parents and ultimately placed in foster care. Subsequent VA clinical notes indicate the Veteran continued to receive ongoing care for symptoms of depression and anxiety. In January 2015, the Veteran underwent a VA Compensation and Pension (C&P) examination for mental disorders. The report notes a diagnosis of depression; the examiner gave a negative nexus opinion but offered an unintelligible rationale for this conclusion. A private psychologist submitted an evaluation, dated in January 2017, diagnosing the Veteran with unspecified depressive disorder causing occupational and social impairment with deficiencies in most areas. The psychologist concluded the Veteran’s disorder more likely than not began in military service, continued uninterrupted to the present, and was aggravated by his service-connected tinnitus and bilateral hearing loss. In April 2019, the Veteran underwent another VA C&P examination. He was again diagnosed with major depressive disorder as well as with other specified personality disorder with cluster B features. In an accompanying opinion (also dated in April 2019), the examiner opined first that it was unclear whether the Veteran had a mental disorder that preexisting service. Regardless, the examiner stated, “it does appear that his current[] functioning is negatively impacted by the interaction between his service connection physical conditions and his personality features.” In a separate opinion, the examiner conjectured that the Veteran’s personality disorder “appeared prior to his entering the military”; the examiner based this finding on the Veteran’s placement in a boys’ home at an early age and on his difficulty dealing with authorities.” However, the examiner further stated that the “intensity of this condition seems to have been exacerbated by his military service” and by subsequent attempts to cope with service-connected arthritis and hearing loss. In November 2020, a private examiner diagnosed the Veteran with major depressive disorder; the examiner opined the Veteran’s mental health problems as likely as not started during service and continued to the present. The examiner cited the Veteran’s service treatment records, lay statements, and an interview with the Veteran as the basis for this conclusion. The examiner noted the Veteran had multiple stressful and traumatic events in service which potentially gave rise to his major depressive disorder (the examiner emphasized the Veteran was not noted to have a psychiatric disorder at enlistment). The examiner further opined the Veteran’s mental health problems were more likely than not aggravated by his service-connected tinnitus, which promoted social isolation. In addition to the above medical evidence, the Veteran submitted statements from acquaintances who knew the Veteran before he enlisted in the military. These statements indicate the Veteran was laid back, outgoing, friendly, and mild mannered. They stated that during service the Veteran seemed down and depressed, and that when he returned from service he was not his old self; he was isolated, angry, withdrawn, and had trouble maintaining relationships and friendships. In this case, the Board finds the weight of the evidence supports an award of service connection for major depressive disorder. Although there is some question as to the precise onset date of the Veteran’s mental health problems, the Board finds the overwhelming weight of the lay and medical evidence at the very least demonstrates that his symptoms were exacerbated, or aggravated, by in-service experiences, particularly in light of the serious symptoms documented in the 1981 psychiatric evaluation discussed above. Moreover, the Veteran did not have a psychiatric disorder noted at entrance into service; and even assuming such a disorder pre-existed service, the Board finds VA has not met its burden to prove by clear and convincing evidence that his current disorder was not aggravated beyond the natural progression of the disease in service. In this regard, the Board notes that the Veteran has been diagnosed with two separate mental health disorders, a personality disorder and major depressive disorder. While there is some evidence to reflect his personality disorder may have preexisted service, there is no probative evidence demonstrating conclusively that his depressive disorder preexisted his service. In any event, it strains credulity to suggest the Veteran’s symptoms were not aggravated in service, as he was found fit to serve at entrance and subsequently developed severe symptoms including hallucinations and suicidal ideation. The Board acknowledges the record shows the Veteran had a difficult childhood in which he manifested behaviors that may have been indicative of a personality disorder. Notwithstanding, there are multiple medical opinions of record demonstrating that his major depressive disorder may well have begun, or at least been exacerbated, by in-service experiences. In sum, there is credible lay and medical evidence of record that supports the Veteran’s contentions that his current major depressive disorder was at minimum aggravated beyond its natural progression by in-service experiences. Resolving all reasonable doubt in the Veteran’s favor, service connection for major depressive disorder is granted. REASONS FOR REMAND 2. Entitlement to service connection for diverticulitis and IBS is remanded. The Veteran seeks service connection for diverticulitis and IBS in addition to his service-connected acid reflux. Notably, his service treatment records reflect multiple visits to sick call for treatment of gastroenteritis and gastritis. Likewise, the Veteran’s post-service VA medical records indicate treatment for digestive problems, to include diverticulitis and bowel problems as well as GERD. In its prior remand, the Board directed the RO to afford the Veteran examination, with instructions to “address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service.” In April 2019, the Veteran underwent VA C&P examinations for diverticulitis and IBS. These reports include negative nexus opinions in which the examiner provided an extensive rundown of pertinent evidence, noting the Veteran “reports a history of diarrhea, abdominal pain and bloody stools while in service.” However, the examiner based his negative conclusion on the fact there was “no documentation of any evaluation or treatment for recurrent abdominal symptoms until 2012,” stating the Veteran “was not seen between the dates of 1980 and 2013.” The Board finds these opinions are inadequate. Simply stating the Veteran was not treated for a particular disorder or particular symptoms, without discussing his lay assertions, does not substantially comply with the Board’s requests that the examiner “address the Veteran’s lay statements” regarding the chronology of his symptoms. Accordingly, an additional examination is in order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers upon the veteran, as a matter of law, the right to compliance with the Board’s remand order); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (noting the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). 3. Entitlement to service connection for obstructive sleep apnea and a headache disorder, to include on a secondary basis, is remanded. The Veteran contends his obstructive sleep apnea is secondary to his major depressive disorder. He also contends his headache disorder is secondary to his service-connected tinnitus and major depressive disorder. See 38 C.F.R. § 3.310. In support of these contentions, he submitted December 2016 evaluations completed by a private physician, Dr. Skaggs, which included positive nexus opinions. On review, however, the Board finds these opinions are inadequate to support a grant of service connection, as there is little substantive rationale to support them. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Veteran has not been afforded a VA examination for either his obstructive sleep apnea or his headache disorder. In light of the positive evidence provided by the Veteran and the Board’s grant of service connection for major depressive disorder (the disorder underlying part of the Veteran’s theory of secondary service connection), the Board finds such examinations are warranted. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (describing the circumstances under which VA’s duty to provide a medical examination are triggered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s diverticulitis and IBS. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for diagnoses of diverticulitis and/or IBS are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that either of these disorders were incurred in or otherwise related to the Veteran’s service. Specifically discuss all in-service evidence of gastric symptomatology, including that which was discussed in the April 2019 C&P opinions. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that either of these disorders was caused or aggravated by the Veteran’s service-connected acid reflux. (d) The examiner should specifically discuss any pertinent lay statements provided by the Veteran in support of his claims, including statements regarding the chronology of his symptoms. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 2. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s obstructive sleep apnea. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was incurred in or is otherwise related to the Veteran’s service. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea was caused or aggravated by his service-connected major depressive disorder. Specifically discuss the December 2016 evaluation completed by Dr. Skaggs, to include his positive nexus opinion. (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. 3. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s headache disorder. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder was incurred in or is otherwise related to the Veteran’s service. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder was caused or aggravated by either his service-connected tinnitus or his service-connected major depressive disorder. Specifically discuss the December 2016 evaluation completed by Dr. Skaggs, to include his positive nexus opinion. (d) If there is another etiology identified for the Veteran’s disability, that should be noted. The examiner should set forth all examination findings, with a clear, detailed, and fact-based rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.