Citation Nr: 21023654 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-46 695 DATE: April 21, 2021 ORDER Service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to a compensable disability rating for service-connected pain in left groin, status-post surgery, is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, major depressive disorder is secondary to the Veteran’s service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1984 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. In January 2019, the Veteran testified at a Board video conference hearing over which the undersigned presided. A transcript of the hearing is of record. In July 2019, the Board reopened and granted a previously denied claim of service connection for PTSD, and remanded a separate claim of service connection for major depressive disorder. It is now returned to the Board. 1. Entitlement to service connection for major depressive disorder. The Veteran asserts that he has depression as a result of his period of active service. During his January 2019 Board hearing, he reported that he had been treated for his symptoms since approximately 2006. He indicated that he had undergone both group and individual therapy. Lay statements from the Veteran’s spouse suggest that she had witnessed the Veteran experience symptoms associated with depression. Service connection has already been established for posttraumatic stress disorder (PTSD). In this regard, the Veteran had reported that during his tour of duty working on the flight deck of a ship, he witnessed a fellow service member get run over by a jet. He described that the incident placed him in fear of experiencing a similar fate. He also reported that a fellow service member dies in his sleep while on board the ship, and that there were rumors that he had been murdered. This also placed him in fear of experiencing a similar fate. He further described that he served in combat situations during Operations Desert Storm and Enduring Freedom. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as psychoses, may also be established based upon a legal “presumption” by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Service treatment records are silent for any treatment for depression during the Veteran’s period of active service. Following service, an August 2010 VA examination report shows that the Veteran reported stressful events consistent with those as set forth above. The examiner provided a diagnosis of major depressive disorder. The examiner concluded that his presentation was more consistent with depression rather than PTSD. A Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (VA Form 21-0960P-3) completed by N. Abston, Jr., PhD, the Veteran’s treating psychologist, dated in October 2013, shows that the Veteran was diagnosed with severe PTSD with psychosis. Dr. Abston concluded that the Veteran suffered from symptoms of chronic PTSD related to military trauma. This report does not indicate that there any other psychiatric diagnosis. A VA Form 21-0960P-3, completed by J. Law, Psychologist, dated in August 2020, shows that the Veteran was diagnosed with PTSD; recurrent, moderate, major depressive disorder secondary to PTSD; and panic disorder. In a separate mental status evaluation, also dated in August 2020, by Dr. Law opined that the Veteran’s traumatic events experienced in service resulted in the development of chronic PTSD with secondary major depression and panic disorder. The Veteran was diagnosed with chronic PTSD secondary to military trauma; recurrent, severe, major depressive disorder; and panic disorder with obsessive compulsive traits. It was further opined that it was more likely than not that the PTSD was caused by the reported in-service stressors, had worsened, and was not in remission. He would experience near continuous PTSD symptoms and depression which prevented him from functioning independently, appropriately, and effectively. A VA examination report dated in October 2020 shows that the Veteran was diagnosed with PTSD. The examiner indicated that the Veteran did not have more than one mental disorder diagnosed. The examiner added that any symptoms related to major depressive disorder were subsumed under the PTSD diagnosis. His description of depression was isolating himself from his family because it was hard to be around others. This was said to be a symptom of PTSD. The examiner explained that his symptoms appeared to be best nested under the conceptualization of PTSD. He described family estrangement, protective self-isolation. He noted his psychiatrist increased his medication. His medication for depression and sleep were increased. Having considered the evidence of record, the Board finds that the August 2020 opinion of Dr. Law is probative of the fact that the Veteran has a diagnosis of major depressive disorder that is secondary to his service-connected PTSD. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Board has considered the October 2020 opinion of the VA examiner that the Veteran did not have a separate diagnosis of major depressive disorder, but rather the major depressive disorder was subsumed under the PTSD diagnosis. Notwithstanding the fact that the earlier VA examiners had found a diagnosis of major depressive disorder, the Board finds this opinion also to be probative as it, too, was definitive, based upon a complete review of the Veteran’s entire claims file, and supported by detailed rationale. As such, the Board finds that the issue as to whether the Veteran has a separate diagnosis of major depressive disorder that is secondary to the service-connected PTSD to have reached a state of relative equipoise. Therefore, resolving doubt in the Veteran’s favor, service connection for major depressive disorder, secondary to the service-connected PTSD is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability. The Veteran contends that he has residuals of a left knee injury sustained while working on the flight deck of the ships on which he was serving during his period of active service. During the January 2019 Board hearing, he described that he would use his left knee to lift a 30 pound toolbox on top of the jet on which he was working. He indicated that this repeated activity over the course of eight years resulted in left knee symptoms that have continued ever since. In the July 2019 Board remand, the RO was instructed to obtain a VA medical opinion as to whether it is at least as likely as not that the asserted left knee disability was related to active service, to include repeatedly lifting a 30 pound toolbox with his knee over an eight year period during active service. The examiner was also asked to opine as to whether it was at least as likely as not that the Veteran had manifested arthritis of the left knee within one year following his separation from active service. The Veteran was afforded the requested VA examination in August 2020. In correspondence dated in December 2020, the Veteran’s representative asserted that the VA examination report did not address the directive of the Board, to specifically include whether the current left knee disability was related to repeatedly lifting a 30 pound toolbox with his knee over an eight year period during active service; and whether the Veteran had manifested arthritis of the left knee within one year following his separation from active service. After reviewing the August 2020 VA examination report, the Board concurs with the assertions of the Veteran’s representative. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a new opinion is mandated. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall, 11 Vet. App. at 271. 2. Entitlement to a compensable disability rating for service-connected pain in left groin, status-post surgery. The Veteran’s service-connected left groin disability had previously been rated under 38 C.F.R. § 4.124A, Diagnostic Code 8530, which provides the rating criteria for the ilio-inguinal nerve. During the July 2019 Board hearing, the Veteran had indicated that his symptoms had increased in severity since having previously been examined by VA. As such, the Board remanded the issue so that a contemporaneous examination could be undertaken. In addition, the Board reopened a previously denied claim of service connection for an inguinal hernia. Based on the findings of the examinations conducted on remand in August 2020, service connection was granted for an inguinal hernia, and a noncompensable disability rating was assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7338. The examiner noted that VA treatment records showed left groin pain and left varicocele, and the examiner opined that the disability was related to service. With regard to the claim for an increased rating for left groin pain, in the November 2020 Supplemental Statement of the Case, the RO indicated that the Veteran’s disability was rated based on a muscle group XIII injury. In other words, the RO began rating the disability under the criteria for muscle injuries instead of the rating criteria for nerve damage; however, the RO failed to provide any explanation for this change. Moreover, the SSOC does not indicate under which diagnostic code provision the disability was rated. As the Supplemental Statement of the Case did not provide the specific laws and regulation pertaining to the noncompensable disability rating that was assigned, as a muscle injury in lieu of a nerve injury, the Veteran has been denied due process of law. See Bernard v. Brown, 4 Vet. App. 384 (1993). As such, the Veteran must be notified of the applicable laws and regulations governing the rating of his service-connected disability, and the RO should provide an explanation for the change. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed left knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including repeatedly lifting a 30 pound toolbox with his knee over an eight year period during active service. The examiner must also opine whether it is at least as likely as not that the Veteran had manifested arthritis of the left knee within one year following his separation from active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a specific left knee disability in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 2. Readjudicate the Veteran’s claim of entitlement to a compensable disability rating for service-connected pain in left groin, status-post surgery with application of all appropriate laws and regulations (to include any applicable amended regulations) and consideration of any additional information obtained since the issuance of the Supplemental Statement of the Case issued in November 2020. Notably, the RO should explain in the SSOC why the Veteran’s left groin pain, that was initially rated as a nerve injury, was subsequently recharacterized as a muscle injury, and the significance of this change, if any. If the decision remains adverse to the Veteran, he and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable period of time within which to respond thereto. The Supplemental Statement of the Case must include citation to and discussion of the laws and regulations pertaining the applicable rating criteria used to rate the Veteran’s disability. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.