Citation Nr: 22010548 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 14-32 957 DATE: February 24, 2022 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the thoracic spine is granted. Entitlement to service connection for right hip bursitis and osteoarthritis is granted. Entitlement to service connection for a left hip condition is granted. Entitlement to service connection for hernia residuals is granted. Entitlement to service connection for major depressive disorder (MDD) and other specified anxiety disorder is granted. FINDINGS OF FACT 1. The Veteran's DDD of the thoracic spine, right hip bursitis and osteoarthritis, and left hip condition started during service and continued to present. 2. The Veteran had a hernia repair during active service and continues to have residual issues as a result. 3. The Veteran's MDD and other specified anxiety disorder are related to active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for DDD of the thoracic spine have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for right hip bursitis and osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for a left hip condition have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria to establish service connection for hernia residuals have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria to establish service connection for MDD and other specified anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to August 1993. The Veteran appealed a June 2014 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in July 2015 before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript is of record. In November 2021, the Department of Veterans Affairs (VA) sent the Veteran a letter offering a new hearing. The Veteran did not request a new hearing. See December 2021 correspondence. In September 2018, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the September 2018 Board decision additionally remanded the issues regarding a lung disability to include obstructive sleep apnea (OSA), gastroesophageal reflux disease (GERD), and vocal cord growth. Service connection for these conditions were granted in August 2020, March 2021, and August 2021 rating decisions. The Veteran has not expressed further disagreement with these claims. Therefore, the Board finds that the issues regarding a lung disability, OSA, GERD, and vocal cord growth are no longer on appeal. A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Back and Hips The Veteran is diagnosed with DDD of the thoracic spine, right hip bursitis and osteoarthritis, and left hip pain. See May 2014 examination report. Although the Veteran was not formally diagnosed with a left hip condition during the May 2014 examination, in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. The May 2014 examiner noted issues with sleeping and sitting. The Board considers the Veteran's pain amounts to such disabling functional impairment as contemplated in Saunders. Therefore, the first Shedden is met as to the Veteran's left hip condition. The Veteran was treated for back pain throughout active service and his separation examination noted painful joints and pain in the hips. See February and November 1990, and August 1993 service treatment records (STRs). An October 1993 examination report noted hip pain. A March 1997 evaluation noted lower spine discomfort and recommended physical therapy. The May 2014 examination report noted that the Veteran's back has bothered him forever and that he was never formally evaluated. The Veteran testified that his back and hip pains have continued since service. See July 2015 Board Hearing Tr. at 8, 22, 24. Overall, the Veteran entered service without back or hip pains. See March 1989 STRs. The Veteran was treated on several occasions for back pain during service. The Veteran separated service with noted hip pain. The Veteran would be evaluated for hip pain months after separating from active service. The Veteran would also be evaluated for back pain within 5 years of separating form active service. The Veteran competently stated that he has had back and hip pain since service. The Board finds the Veteran's statements credible. The Board finds that the evidence is at least in equipoise as to whether the Veteran's back and hip conditions had their onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's back and hip conditions originated during service. Accordingly, service connection for DDD of the thoracic spine, right hip bursitis and osteoarthritis, and left hip condition, are warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Hernia The Veteran testified that he had a hernia repaired during service that was apparent at the time, and that he continued to have issues with it to the present day. See July 2015 Board Hearing Tr. at 35-37. The Veteran is competent to attest to having a hernia repaired during service and continued issues to present. The Board finds the Veteran's statements credible. The Veteran had gall bladder surgery/cholecystectomy during service. See March 1991 STRs. August 2004 treatment records noted hiatal hernia repair in the early 1990s. March 2013 treatment records noted a hiatal hernia repaired around 1992. April 2013 treatment records noted 2 hernia repairs with the most recent being in 1999. The June 2014 opinion noted various scars, but assumed they were all related to the Veteran's cholecystectomy, but there is no way to prove this otherwise. Based on the evidence, the medical evidence suggests that the Veteran had a hernia repair during service. The Veteran had surgery during service. There are various scar marks representing multiple surgeries in the past. The Board finds that the evidence is at least in equipoise as to whether the Veteran had hernia surgery during service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran had a hernia repair during service and that he has residual symptoms to present. Accordingly, service connection for hernia residuals is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Psychiatric Disorder The Board notes that the issue of whether the Veteran's psychiatric disorder pre-existed service was raised in the September 2018 Board decision. The Board notes that the entrance examination did not note any psychiatric symptoms or disorders. See March 1989 STRs. The March 2021 opinion also found the Veteran sound upon entering service. Therefore, the Board finds the Veteran sound upon entering active service regarding his psychiatric disorder. As noted in the September 2018 Board decision, the claim has been expanded to include any acquired psychiatric disorder. The Veteran is diagnosed with MDD and other specified anxiety disorder. See January 2020 examination report. Although the claim included a claim for posttraumatic stress disorder (PTSD), examinations and medical evidence of record do not indicate a diagnosis of PTSD. The Board finds that the Veteran's mental health symptoms are all encompassed in his MDD and other specified anxiety disorder. The Veteran noted a scud missile attack during service and also an event regarding a fellow service member's captain's mast. See May 2014 examination report; July 2015 correspondence, July 2015 Board Hearing Tr. at 17-18. The Veteran is competent to attest to the occurrence of these events during service. The Board finds the Veteran's assertions credible. The May 2014 examination report noted that the Veteran continued to seek treatment for his depression after separating from service. The January 2020 opinion found that the Veteran's psychiatric condition was aggravated beyond its natural progression by service with increased intensity, frequency, and duration during service. Overall, the Veteran entered service without any psychiatric disorder. See March 1989 STRs. Medical evidence suggests that the Veteran's psychiatric disorder pre-existed service. See May 2014 examination report. However, as noted above, the presumption of soundness attaches. As such, the Veteran must have had and developed his psychiatric disorder during service. A medical opinion, despite premised on the Veteran having a pre-existing psychiatric condition, ultimately found that the Veteran's psychiatric disorder was aggravated by and worsened during service. Medical evidence notes the Veteran continued depression treatment post service. (Continued on the next page) The Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder had its onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's acquired psychiatric disorder originated during service. Accordingly, service connection for MDD and other specified anxiety disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.