Citation Nr: 21042286 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 09-30 260 DATE: July 12, 2021 ORDER Service connection for an acquired psychiatric disorder, to include depression and anxiety, as secondary to service-connected disabilities, is granted. FINDING OF FACT The Veteran's acquired psychiatric disorder is reasonably shown to be related to or caused by his service-connected disabilities. CONCLUSION OF LAW The criteria have been met for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 1131 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from April 1987 to July 1987 and from January 2007 to March 2008, with additional periods of service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2017 decision, the Board denied service connection for a psychiatric disorder, bilateral knee disabilities, sleep apnea, and gastroesophageal reflux disease (GERD). Subsequently, the Veteran appealed the denial of the claims to the United States Court of Appeals for Veterans Claims (Veterans Court). In a December 2017 Order, the Veterans Court vacated the Board's April 2017 denial of the claims for service connection and remanded the matters to the Board for action consistent with the Joint Motion for Remand (JMR). In an August 2018 decision, the Board remanded the claims for service connection for bilateral knee disabilities, sleep apnea, GERD, and an acquired psychiatric disorder. During the period of the appeal, in a November 2020 Rating Decision, the RO granted service connection for a right knee disability, left knee disability, sleep apnea, and GERD. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The only issue remaining on appeal is service connection for an acquired psychiatric disorder. This case was previously before the Board in February 2011 and August 2018 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for an acquired psychiatric disorder is granted. Factual Background In a September 2020 VA opinion, the examiner noted that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale noted that the Veteran has been diagnosed mainly with depression, not otherwise specified (NOS), or unspecified depressive disorder, and anxiety NOS, which was the same as an unspecified anxiety disorder. The VA examiner wrote that these two mental disorders were different, unrelated, but can often merge and appear as one diagnosis. In the Veteran's case, the most often used diagnosis is unspecified depressive disorder. As part of the rationale for opining against a causal link between the current acquired psychiatric disorder and active service, the VA examiner noted that the Veteran did not seek "formal" psychiatric treatment until 2012. Concerning the June 2008 VA treatment record, the examiner reported that the Veteran was seen as part of the returning Veterans outreach, education, and care program. The examiner explained that this was a "psycho educational" group for Operation Iraqi Freedom and Operation Enduring Freedom returning Veterans and their significant others. According to the VA examiner, this was not a formal training, just a tool for further treatment, and the Veteran never pursued psychiatric treatment until January 2012. In a June 2021 private medical opinion, the Veteran's physician noted that it was more likely than not that the pain associated with the Veteran's multiple service-connected musculoskeletal conditions caused or aggravated his depression. The rationale was that after a review of the Veteran's claims file, including his medical treatment records, and the fact that the medical record documented possible mental health problems reported as early as 2007, when he obtained a sick slip for stress. According to the private physician, the Veteran's psychiatric status changed in 2012. A January 2012 "visit note" reflected that the Veteran's complained of depression and was diagnosed with depressive disorder NOS. Additionally, chronic back pain was also noted at this visit. On the Veteran's April 2012 Periodic Health Assessment form, the Veteran mentioned that he was depressed and indicated that he could not perform his duties and/or his physical fitness testing. The private physician noted that there was a "temporal association" between this diagnosis and an increase in pain. Prior to 2012, the Veteran did not rate his pain higher than 3/10. However, in 2012, he rated it 6/10 and 7/10. Additionally, the physician reported that subsequent to 2012, the record reflected both ongoing treatment for depression and ongoing treatment for the Veteran's painful musculoskeletal conditions. In 2013, the Veteran participated in two courses of physical therapy related to knee pain. In October 2013, there is a note regarding pain management related to his chronic back pain. Psychotherapy notes from 2016 indicated that pain management was one of the specific interventions employed in the session. A 2017 note documented that the Veteran' was "struggling with concerns about physical pain and how this pain is impacting his ability to retain and function in his job." The private physician noted that the 2020 VA opinion was conducted to consider a direct relationship between the Veteran's mental health during service and his current depressive disorder. The VA examiner found no connection between the Veteran's problems during military service and his current depression and noted the absence of a temporal relationship, given the time elapsed between the Veteran's discharge and his diagnosis. According to the private physician, the 2020 VA examiner did not consider whether the Veteran's service-connected musculoskeletal conditions might have caused or aggravated the Veteran's depression. While the records reflect that marital distress as likely as not contributed to the Veteran's depression, the examiner opined that it was also as likely as not that his painful back and knee conditions contributed to his depression as well. The private physician reported that it has been well established that chronic pain and depression both co-occur and interact with each other through a variety of shared pathophysiological mechanisms. The physician explained that these conditions affect each other and that patients with both mental illness and chronic pain tend to experience increased psychiatric symptoms. Additionally, depression is associated with greater pain sensitivity. The physician explained that these effects occurred at a systemic level, such that it is not possible to ascribe depression symptoms to a particular painful condition when there are multiple painful conditions. As one article summarized, "A significant number of people who experience chronic pain also complain of depression and sleep problems. These comorbidities and bidirectional relationships that exist between these ailments are well recognized clinically. Further, all three disorders involve similar alterations in structural and functional neurobiology and share common pathophysiological mechanisms." In conclusion, the private physician noted that the Veteran is diagnosed with multiple chronic and painful service-connected musculoskeletal conditions and that, while other factors may contribute to his depression, the chronic pain caused by these service-connected musculoskeletal conditions is more likely than not a cause of his depressive disorder. Analysis Based on the above evidence, the Board finds that the June 2021 private opinion has greater probative value than the September 2020 VA opinion. The June 2021 private opinion went into great detail in addressing how the pain from the Veteran's service-connected disabilities affected his depression. By contrast, the September 2020 VA opinion did not address this theory of entitlement at all. Combined with the competent and credible statements from the Veteran, the Board determines that at the very least, the evidence is evenly balanced for and against ("in relative equipoise") as to whether the Veteran's acquired psychiatric disorder is related to his already service-connected disabilities. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.