Citation Nr: 21029919 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-45 192 DATE: May 17, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. Service connection for headaches is granted. REMANDED Service connection for back injury is remanded. Service connection for neck injury is remanded. Service connection for right hip injury is remanded. Service connection for left ankle injury is remanded. Service connection for ulcers is remanded. Service connection for heart problems is remanded. Service connection for kidney failure is remanded. Service connection for head trauma is remanded. Service connection for seizures is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Medical evidence establishes a diagnosis of an acquired psychiatric disorder, to include major depressive disorder related to service. 2. The competent and credible evidence of record is in equipoise as to whether a currently diagnosed headache disability was incurred during active service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include major depressive disorder was incurred during active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. Resolving doubt in favor of the Veteran, a headache disability was incurred during active duty. 38 U.S.C. §§ 1110, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2002 to March 2003. The Veteran appeared before at Board hearing in January 2021 before the undersigned Veterans Law Judge. The Veteran seeks service connection for both major depressive disorder (claimed as mental disorder/illness) and a personality disorder. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As these issues presented as separate, are essential the same or similar, they have been merged into a single issue encompassing any claimed psychiatric disability. Thus, the Board has merged the issues of entitlement to service connection for a personality disorder and entitlement to service connection for a major depressive disorder and granted the claim of service connection for an acquired psychiatric disorder, to include major depression as indicated on the title page. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for major depressive disorder. The Veteran asserts that service connection is warranted for an acquired psychiatric disorder, to include major depressive disorder due to injury that was incurred in-service. The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A June 2014 VA compensation and pension medical examination shows the Veteran has a current diagnosis of major depressive disorder. The Veteran was afforded a subsequent June 2014 VA for mental disorders; however, the examiner did not opine as to whether the Veteran's depressive order was due to injury that occurred during active duty. Thus, the question becomes whether the evidence shows that the current disability is related to service. The Veteran explains that she was injured after falling and hitting her head twice while in service, which subsequently resulted in her current major depressive state. The evidence in favor of the claim includes a February 2003 service treatment record documentation of the Veteran's complaint of depression while on active duty, with a note that she had no prior history of a psychiatric disorder. A November 2003 treatment record shows a diagnosis of major depressive disorder following discharge from active duty eight months prior to the date of treatment. See November 2003 Treatment Record. An April 2004 treatment record references that the Veteran had a prior history of mental health issues without specific details regarding when the mental health issues began. See Dr. R.D. April 2004 Treatment Record. The Veteran presented sworn testimony that her symptoms of depressive disorder have been consistent since active duty service. See January 2021 Board Transcript. There are no medical opinions to the contrary, of record. The evidence shows a diagnosis of major depressive disorder during the pendency of the claim, as well as in-service complaints of depression. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current depressive disorder is related to service. Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). 2. Entitlement to service connection for headaches. The Veteran seeks service connection for headaches that she explains are due to injury that occurred during and have been consistent since service. See January 2021 Board Transcript. The Veteran's treatment records show numerous complaints of headaches. See eg. January 2005 Private Treatment Record, May 2005 Private Treatment Record; See also August 2010 Private Treatment Record. However, no etiology opinion has been given. The Board notes that the Veteran is competent to describe experiencing headaches as that comes to her through her senses and requires only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). The Veteran is competent to describe in-service headaches and current headaches, and the Board finds that her assertions are credible. After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the currently diagnosed headaches cannot be disassociated from the in-service documented headaches. The medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Therefore, reasonable doubt is resolved in favor of the Veteran in finding a current headache disability related to service. Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). REASONS FOR REMAND 1. Entitlement to service connection for back injury is remanded. 2. Entitlement to service connection for neck injury is remanded. 3. Entitlement to service connection for right hip injury is remanded. 4. Entitlement to service connection for left ankle injury is remanded. 5. Entitlement to service connection for ulcers is remanded. 6. Entitlement to service connection for heart problems is remanded. 7. Entitlement to service connection for kidney failure is remanded. 8. Entitlement to service connection for head trauma is remanded. 9. Entitlement to service connection for seizures is remanded. 10. Entitlement to individual unemployability is remanded. The Veteran seeks service connection for back, neck, right hip, left ankle, ulcer, heart, kidney, head trauma and seizure disorders that he states are caused by injury incurred during service. The Veteran explains that she fell during active duty training, causing neck, left ankle, head trauma and seizure disorders. See January 2021 Board Hearing Transcript. The Veteran's service treatment records show complaint of hip, back pain. See February 2003 Service Treatment Record. The Veteran's service treatment records also note that a waiver was obtained for a duodenal ulcer condition that the Veteran asserts was aggravated by service. See February 2002 Service Treatment Record. The Veteran further explains that her psychiatric disorder manifests in symptoms of heart palpitations that cause distress. Id. She has not been afforded a VA examination to address her concerns. Under these circumstances, the Board finds a remand is warranted for a VA examination to determine the nature and etiology of her claimed conditions pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds the claim for a TDIU is inextricably intertwined with the claims above, and a remand is also required to obtain an updated VA Form 21-8940 and employment information. The matters are REMANDED for the following action: 1. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her back, neck, right hip, left ankle, gastrointestinal, heart, kidney, seizures and residuals of head trauma. The Veteran should also be invited to submit lay evidence addressing the nature, extent and severity of her service-connected disabilities and the impact of the conditions on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Afford the Veteran an opportunity to clarify her work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to her claim for a TDIU. 3. Schedule the Veteran for VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the etiology of any diagnosed back, neck, right hip, left ankle, ulcer, heart, kidney, head trauma or seizure disorders disabilities. The determination of whether an in-person examination should be left to the discretion of the examiner. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner(s) should specifically take into consideration lay witness statements regarding each claimed condition. The VA examiner(s) are requested to address the following: Is it at least as likely as not that the Veteran has a back, neck, right hip, left ankle, ulcer, heart, kidney, head trauma or seizure disorders that had its onset during, or is otherwise related to, his active military service? The examiner must also opine as to whether it is at least as likely as not that any of the disabilities found to be present were caused by the Veteran's service-connected psychiatric disability and headache disorder, to include the aggregate impact of the conditions. The examiner must also opine as to whether it is at least as likely as not that any of the disabilities found to be present were aggravated by the Veteran's service-connected psychiatric disability and headache disorder, to include the aggregate impact of the conditions A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.