Citation Nr: 21012040 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-15 785A DATE: March 3, 2021 ORDER New and material evidence having been received, the claim of service connection for depression is reopened. New and material evidence having been received, the claim of service connection for anxiety is reopened. REMANDED Service connection for a psychiatric condition to include anxiety, depression, and somatoform pain disorder.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to September 1976. The case is on appeal from a November 2012 rating decision that denied service connection for somatoform pain disorder and an April 2016 rating decision that determined new and material evidence had not been received to reopen claims of service connection for an anxiety disorder and depression. The Board issued a decision in December 2016 remanding the claim of service connection for somatoform pain disorder for the issuance of a supplementary statement of the case (SSOC). In January 2019, the Board remanded the claims of service connection for an anxiety disorder and depression for the issuance of an SOC. In a September 2019 Board decision, the Board denied service connection for somatoform pain disorder. The Veteran’s representative filed correspondence in September 2019, which the Board construed as a motion for reconsideration pursuant to 38 C.F.R. § 20.1001 and 20.1002. The Board denied the motion in a November 2019. The Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in September 2020 granting a September 2020 Joint Motion for Partial Remand (JMPR). The Court’s Order vacated and remanded the Board’s decision denying service connection for somatoform disorder for action consistent with the terms of the JMPR. Thus, the issues of service connection for somatoform disorder is before the Board pursuant to the Court’s Order. The remaining issues decided were left undisturbed. In October 2020, the Veteran’s representative submitted additional evidence. The Veteran’s representative waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). 1. Whether new and material evidence has been submitted to reopen a claim of service connection for depression. By March 2008 rating decision, a claim of service connection for depression, as secondary to the service-connected disability of hydrocele was denied. The Veteran was notified of the decision by letter in later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in October 2016. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the March 2008 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for depression is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also March 2016 private psychological evaluation. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for anxiety. By a September 2004 rating decision, the claim of service connection an anxiety disorder as secondary to service-connected right inguinal hernia was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in October 2016. No new evidence or NOD was received by VA within one year of the issuance of the September 2004 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for anxiety is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also March 2016 private psychological evaluation. REASONS FOR REMAND Service connection for a psychiatric condition to include anxiety, depression, and somatoform pain disorder. Although there have been varying psychiatric conditions adjudicated over time, the Board has now recharacterized the Veteran’s appeal more broadly as a claim of service connection for a psychiatric condition. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran is seeking service connection for a psychiatric condition as secondary to his service-connected scar associated with his postoperative right inguinal hernia, postoperative hydrocele, and residuals of his postoperative right inguinal hernia with hydrocele. The Veteran has generally asserted that he has experienced psychological distress due to the pain and loss of sexual function caused by service-connected residuals associated with his in-service hernia repair. The Board also notes that the issue of whether the Veteran’s psychiatric condition is related or had its onset in military service is raised by the record as the Veteran asserted he is angry with the military due to his early separation from service because he was not able to pursue a career in the military. The September 2020 JMPR notes that the Board must identify the scope of the claim, including whether claim does or does not include a diagnosed mood disorder. In this regard, as noted above, the Board has recharacterized the Veteran’s claim more broadly as claim of service connection for a psychiatric condition. Clemons, 23 Vet. App. at 5. The Board finds an additional VA medical opinion addressing the etiology of the Veteran’s psychiatric condition(s) is necessary. The Veteran was initially afforded a VA examination in July 2004 to specifically address his claim of having an anxiety disorder secondary to his service-connected postoperative right inguinal hernia with hydrocele and scars. At that time, the examiner reported a diagnosis of cocaine dependence and marijuana/alcohol abuse in early partial remission. The examiner concluded that the Veteran did not have an anxiety disorder secondary to his service-connected postoperative right inguinal hernia with hydrocele and scars. He explained that the Veteran did not report any anxiety secondary to scrotal pain. The examiner also reported that when informing the Veteran that the examination was related to his reports of pain, the Veteran did not report experiencing scrotal pain; he only reported experiencing pain in his lower back and pain his neck. When discussing the claimed condition, the examiner additionally commented that the Veteran gave no reports of obsessiveness or fear that would be suggestive of anxiety. The Veteran underwent another VA examination in April 2011 after filing a claim for service connection for somatoform pain disorder. At that time, the examiner reported diagnoses including major depressive disorder and polysubstance abuse in sustained remission. Concerning somatoform pain disorder, the examiner explained that the Veteran’s symptoms did not meet the diagnostic criteria. The examiner explained that somatoform pain disorder is characterized by the presence of physical symptoms that suggest a general medical condition where there is no diagnosable medical condition to fully account for the physical symptoms. The examiner cited to the Veteran’s medical history and stated the records did not indicate residuals of his in-service hernia repair that would account for pain in the scrotum. For instance, he noted that service records indicate that the Veteran’s wounds healed without residuals. The examiner also noted inconsistencies in the Veteran’s reports of pain. He noted the Veteran’s in-service hernia repair took place in 1976 and the Veteran’s reports of pain did not occur until 1999 and the fact that the Veteran did not mention any scrotum or groin pain at the time of the July 2004 VA examination although discussing pain related to his neck, lower back, and knee. He also noted that the Veteran claimed problems related to erectile dysfunction, however at the time of the examination, the Veteran disclosed he was involved in a sexual relationship and was the father of a three-month-old child. Instead, the examiner found that the Veteran has problems related to depression and substance abuse, as he has difficulty coping with stress and experiences financial stressors. The Veteran was afforded an additional VA examination in August 2012. At that time, the examiner diagnosed the Veteran with a mood disorder, and polysubstance disorder in sustained full remission. The examiner determined the Veteran does not have a diagnosis of somatoform pain disorder. She explained that by the Veteran’s own report, his mood dysregulation does not play a role in the onset or maintenance of his pain, but rather the pain occurs first. She noted that the Veteran has a long history of mood dysregulation and have been diagnosed with many things over the past few years, including major depressive disorder, depressive disorder NOS, anxiety disorder NOS, personality disorder NOS, and somatoform pain disorder. She also noted that it was difficult to get accurate information from the Veteran during the examination, as he was not forthright in answering her questions. For example, he denied having children and being in a relationship until asked why his VA treatment records indicate he has a daughter and that he lives with his girlfriend, the mother of his child. The examiner stated that she believes the Veteran wanted her to believe that the residuals of his hernia repair surgery resulted in an inability to have children. She also noted other inconsistencies in the Veteran’s records concerning the Veteran’s statements concerning his mental health history. The Veteran’s representative provided an evaluation by a private psychologist in March 2016. The private psychologist opined that the Veteran’s has depressive disorder and opined that his inguinal hernia caused and is aggravating his depressive disorder. The examiner described the severity of the Veteran’s depressive disorder and its symptoms. She also noted that the Veteran reported that his hernia repair caused him to lose sexual function, which ruined his life. The examiner explained that there is a body of literature indicating that there is a causal relationship between medical and psychiatric difficulties. In support of her opinion she commented that the Veteran underwent a cervical fusion and spends most of his time in bed or on the couch. The Veteran underwent an additional VA examination in February 2017. At that time, the examiner diagnosed the Veteran with unspecified anxiety disorder, alcohol use disorder is sustained remission, and stimulant use disorder in sustained remission. Although the examiner was directed to provide an opinion concerning whether his depressive disorder was caused or aggravated by his service-connected hernia repair residuals, she provided an opinion concerning in-service aggravation instead. However, the examiner commented that there are a number of psychosocial stressors that may be contributing to the Veteran anxiety including a lengthy past history of alcohol and cocaine abuse; a past history of homelessness; financial stressors; death of his mother and some of his siblings; and being in a fatal car accident in 1998. She also stated that it appears that many of his difficulties can be traced back to his alcohol and drug abuse and the impact that these have had on his life over the years. She concluded that although he reportedly has experienced difficulties related to his right inguinal hernia repair and residuals, there is not a direct link between the right inguinal hernia and his current mild anxiety related symptoms. The Veteran’s representative provided an addendum opinion from the private psychologist who provided the March 2016 evaluation in October 2020. The private psychologist stated that she reviewed the Veteran’s medical records and the February 2017 VA opinion. She stated that she did not agree with the February 2017 VA examiner’s opinion that there is not a relationship between the Veteran’s right inguinal hernia repair and residuals and his anxiety. She noted that the Veteran stated that he was angry with the military for 20 to 30 years due to his in-service hernia repair a subsequent discharge. She also commented that there are notes in his medical history related to scrotum pain affecting his ability to work. The private psychologist asserted that his substance abuse is related to self-medication. She also opined that its more likely than not that the Veteran’s depressive disorder and generalized anxiety disorder had their onset during service as the Veteran has been bothered by continuous chronic pain and limitations caused from his hernia repair that resulted in his unwanted discharge from military service, which caused mental distress, and continuous vocational problems since service, and that the ongoing pain continues to aggravate the Veteran’s mental disorders. In this case, the Board finds that the opinions of record are not entirely adequate to decide the claim. In this regard, the July 2004 examination report reflects that the Veteran does not have an anxiety disorder, and as such, does not include an etiology opinion concerning this condition, or any other psychiatric conditions. Similarly, the April 2011 and August 2012 opinions conclude that the Veteran does not have somatoform pain disorder but does not address the etiology of any other psychiatric conditions. The March 2016 private opinion appears to be based, at least in part, on the Veteran’s reports regarding the impact of the loss of sexual function, which he attributes to his in-service hernia repair which he stated, “ruined his life.” However, the Veteran specifically filed a claim of service connection for sexual dysfunction as secondary to his hernia repair and residuals and was denied, most recently, in an April 2016 rating decision and January 2019 Board decision. In addition, the private psychologist failed to address other evidence of record that is inconsistent with a loss of sexual function, as noted in the August 2012 VA examination. For example, the Veteran has reported fathering children since his separation from service, including one that was 28 years old at the time of a July 2007 VA treatment record and one that was eight years old at the time of the February 2017 VA examination. In addition, a May 2006 VA treatment record indicates that the Veteran requested an HIV test due to engaging in unprotected sexual activity with multiple partners. Moreover, the private psychologist also based her opinion on what she characterizes as continuous chronic pain caused by the Veteran’s in-service hernia repair. However, the private psychologist does not address how she reached this conclusion in light of the fact that the April 2011 VA examination report notes that the Veteran’s in-service hernia repair took place in 1976 and his reports of pain did not occur until 1999 and when prompted regarding pain, the Veteran did not mention any scrotum or groin pain at the time of the July 2004 VA examination although discussing pain related to his neck, lower back, and knee, or that his reports of pain are inconsistent throughout the record. In addition, the private psychologist did not explain how she reached the conclusion that there is a relationship between the Veteran’s service-connected hernia repair and residuals, for which he has a 10 percent disability rating, in light of the fact that he is also diagnosed with a multitude of musculoskeletal conditions. In this regard, she cited to a cervical fusion in her March 2016 evaluation for which the Veteran is not service connected. Accordingly, a new examination and opinion are warranted on remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since December 2020. 2. Thereafter, schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) to determine the nature and etiology of the Veteran’s psychiatric conditions. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner should identify the Veteran’s psychiatric disorders. Concerning each psychiatric condition identified, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the condition had its onset during service or is related to service. The examiner should consider the Veteran’s contentions with regard to his early discharge from military service including that he is angry with the military due to his early separation from service because he was not able to pursue a career in the military. Concerning each psychiatric condition identified, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the condition is caused or aggravated by his service-connected scar associated with his postoperative right inguinal hernia, postoperative hydrocele, and residuals of his postoperative right inguinal hernia with hydrocele. The examiner should consider and comment upon the March 2016 evaluation and opinion and October 2020 addendum opinion provided by the private psychologist. “Aggravation” is an increase in severity beyond the natural progress of the disease. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.