Citation Nr: 22012250 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-12 373 DATE: March 3, 2022 ORDER Entitlement to service connection for depression and anxiety is granted. REMANDED Entitlement to a rating in excess of 10 percent prior to February 17, 2018, and in excess of 20 percent as of February 17, 2018, for a right shoulder disability is remanded. Entitlement to a rating in excess of 0 percent for migraine headaches is remanded. FINDING OF FACT Depression and anxiety are related to service and complaints during service. CONCLUSION OF LAW The criteria for service connection for depression and anxiety are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2012 to November 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an August 2021 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. Entitlement to service connection for a psychiatric disability The Veteran contends that he is entitled to service connection for a psychiatric disability because the claimed disability is the result of active service. More specifically, the Veteran asserts that complaints of anxiety, depression, and attempted suicide during service are indicative of the psychiatric disability that he currently experiences. The Board concludes that the Veteran has a current disability that began during active service and is related to treatment received in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2011 enlistment examination shows that the Veteran was in good health with no noted diagnosis. Service medical records show ongoing complaints and treatment for depression and anxiety. The Veteran was also assessed as being at risk for suicide. The narrative reason for separation was listed as a "condition, not a disability." August 2013 service medical records notes diagnoses of adjustment disorder with depression and anxiety and anxiety disorder. At the August 2021 Board hearing, the Veteran testified that he was discharged from service shortly after a suicide attempt as noted in an August 2013 service medical records. In a May 2015 VA examination, the examiner noted a diagnosis of "disruption of family by separation or divorce" and a provisional diagnosis of alcohol use disorder. In June 2015, it was opined that the claimed disability was less likely than not incurred in or caused by the claimed injury, event, or illness in service. The rationale provided was that the Veteran was diagnosed with disruption of family by separation or divorce. However, the Board notes that the Veteran did not marry until August 2014, after separation from service. In a December 2017 VA examination, the Veteran was diagnosed with unspecified anxiety disorder. The examiner opined that it was less likely as not that the diagnosed disability was related to service, to include documented treatment in service. The rationale provided was that the Veteran separated from service in November 2013 and the first available records for psychiatric treatment following separation were not until June 2015. "It is noteworthy that the veteran reported that he has not received mental health treatment for the past year." The Board finds that opinion is of little probative value, as the examiner did not explain how a gap in documented treatment of approximately 18 months was significant in providing a negative opinion, and did not consider the documentation and lay statements regarding symptoms during and since service. A November 2021 VA examination noted a diagnosis of severe recurrent major depressive disorder, with anxious distress. In a November 2021 private treatment record, a licensed psychologist, concluded that an overall evaluation of the Veteran provided evidence of depression and anxiety. The Veteran reported feelings of depression and anxiety since active duty. The psychologist opined that the Veteran provided evidence of significant depression and anxiety first occurring during service in October 2012 and persisting in his current state. In support of the findings, the examiner noted that "...there was confirmation of formal diagnosis of Major Depressive Disorder, Recurrent, Severe with Anxious Distress, Severe based on DSM-5 diagnostic criteria secondary to his service in the US Army from October 2012 until November 2013 when he received a Chapter 517." The examiner further reasoned that, upon peer review, there was evidence that the symptoms from service persisted through the present. The evidence against the claim includes the June 2015 medical opinion and the December 2017 VA examination citing the gap in time between the Veteran's separation of service and medical records showing treatment for a psychiatric disability. The evidence in favor of the claim includes service medical records showing ongoing treatment for a psychiatric disability which was noted to be chronic and the November 2021 private medical opinion. After review of the record, the Board finds the evidence to at least be in equipoise as to whether a current psychiatric disability, diagnosed as anxiety and depression, is related to service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a psychiatric disability, diagnosed as anxiety and depression, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to February 17, 2018, and in excess of 20 percent as of February 17, 2018, for a right shoulder disability is remanded. 2. Entitlement to a rating in excess of 0 percent for migraine headaches is remanded. The Veteran contends that he is entitled to an increased rating for the right shoulder and headache disabilities because they are worse than contemplated by the currently assigned rating. At the time of the assigned ratings, the Veteran was found to have "less frequent attacks" of migraine headaches. The Veteran was also assigned a 20 percent rating for painful motion of the right shoulder. The change in rating from 10 percent to 20 percent is indicative of a change in the rating criteria that took place when the Veteran initiated a claim for increase. At the August 2021 Board hearing, the Veteran testified that he experienced several prostrating attacks per month. Regarding the right shoulder disability, the Veteran testified that he experienced intense pain when raising the arm to chest level. The Veteran was last examined for migraine headaches in December 2017 and a right shoulder disability in May 2018. The Veteran's August 2021 testimony indicates that there may be a change in the severity of symptoms of both disabilities since he was most recently examined. As the evidence of record suggests his service-connected disabilities have increased in severity since the most recent VA examinations, the Board finds that the Veteran should be afforded a new examination. Snuffer v. Gober, 10 Vet. App. 400 (1997) The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of a migraine headache disability. The examiner must review the claims file and must note that review in the report. All indicated tests should be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner should: (a.) Report the number and frequency of characteristic prostrating attacks, if any, during all relevant periods and any associated economic inadaptability as a result of the migraine headaches. Specifically make a finding as to whether the migraine headaches are productive of severe economic inadaptability. (b.) Comment upon the frequency and severity of the migraine headache disability without consideration of the ameliorating effects of any medication. 2. Schedule the Veteran for an examination of the current severity of a right shoulder disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing for both right and left shoulders. The examiner should state whether there is any additional limitation of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the Veteran's right shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should state whether or not there is nonunion, malunion, or fibrous union, at the scapulohumeral joint or clavicle. The examiner should also state whether are any surgical scars of the right shoulder are painful or unstable and should provide measurements of any right shoulder scars. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.