Citation Nr: 22016647 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 18-53 051 DATE: March 23, 2022 REMANDED Entitlement to service connection for depression, to include as secondary to service-connected right midfoot degenerative joint disease with pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the US Army from September 1999 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in October 2021. A transcript is of record. 1. Entitlement to service connection for depression, to include as secondary to service-connected right midfoot degenerative joint disease with pes planus, is remanded. As a preliminary matter, the Board notes that the RO last adjudicated this claim in a January 2019 Supplemental Statement of the Case (SSOC). Thereafter, numerous, relevant, non-duplicative evidence was submitted into the record, to include private treatment records and opinions and VA outpatient treatment records dated from January 2020 through January 2022. These records were not considered by the Agency of Original Jurisdiction (AOJ) nor did the Veteran waive AOJ consideration. Since the matter must be remanded for other reasons as outlined below, the RO will have an opportunity to review this additional evidence as well as any other development obtained as directed herein. The Veteran contends that his depression is the result of his service-connected right foot disability, including that the personal and professional limitations caused by his foot pain and associated decline in physical health have caused him to experience depressed mood, anxiety, social isolation, and difficulty establishing and maintaining his personal and familial relationships, among other symptoms. By way of background, the Veteran is service-connected for right midfoot degenerative joint disease (DJD) with pes planus, evaluated as 10 percent disabling from December 2003 until September 2014, and as 30 percent disabling thereafter. The Veteran's service treatment records indicate that he reported right foot pain in March 2000 as well as having suffered a right ankle sprain during basic training, and that the right foot pain worsened over the course of his service. The Veteran was medically discharged due to his right foot injury. The file currently contains numerous medical opinions on the subject, but with significantly different opinions and significantly different representations of the Veteran's symptoms, the severity of symptoms, and etiology thereof. VA outpatient treatment records from 2015 to 2020 indicate depression and anxiety related to a combination of factors stemming from financial stress, self-consciousness due to body image after weight gain, familial worries (particularly related to his son) and also some depression associated with his right foot pain. The Veteran also submitted a private psychologist's opinion dated in January 2022. Although this opinion associated the Veteran's mental health diagnoses with his service-connected right foot disability, the Board finds the opinion not persuasive. The examiner indicated there were many "overlapping symptoms" noting the right foot disability as well as pes planus, arthritis, and low back pain, all contributed to the Veteran's depression. The examiner noted familial and financial stressors. While the examiner further indicated that she could "distinguish" which of the symptoms were associated with which psychiatric diagnoses, the report as a whole does not actually do so. Further, the severity reported in the report is internally inconsistent and inconsistent with the VA outpatient treatment records throughout time. The examiner essentially indicates the Veteran is totally impaired both occupationally and socially, but on the other hand notes various functioning capabilities. VA outpatient treatment records as a whole from 2015 to 2020, moreover, describe a disability picture vastly different than what is described in the January 2022 private opinion's report. Although it is unclear whether the private psychologist is a friend or relative of the Veteran, it is noteworthy that the Veteran had supplied opinions from his wife and a friend who are both mental health professionals. The Board is not suggesting the January 2022 opinion is flawed merely because it "may" be written by a friend, family member, or colleague, but rather suggests that the bias of a familial connection coupled with the stark contrast of the reporting of the severity of the Veteran's condition compared to the VA outpatient treatment records from 2015 to 2021 lends doubt to the credibility of the report. See generally Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (Indicia of a lack of credibility may include conflicting evidence as well as the potential bias of the information source). The Veteran was previously scheduled for a VA examination regarding the claim in June 2018, to which he failed to appear. During his October 2021 Board hearing, the Veteran testified in a virtual hearing that he was never contacted for the scheduled June 2018 VA examination but indicated that he would be willing to report for an examination in the future. Under 38 C.F.R. § 3.655, when a claimant fails to report, without good cause, for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied if the failure to appear was without good cause. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. Id. The Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). Although, in dicta, the Court stated that in the normal course of events, it was the burden of the appellant to keep the VA apprised of his / her whereabouts, and that if he / she did not do so there was no burden on the VA to turn up heaven and earth to find him / her before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that VA's "duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a claimant wishes help, he / she cannot passively wait for it in those circumstances where he / she may or should have information that is essential in obtaining relevant evidence. Id. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Here, the record shows the Veteran was contacted in May 2018 and June 2018 for a mental health VA examination at his last-known address, but that he failed to report. The Veteran testified before the Board that he never received notification of the June 2018 VA examination. The Board observes that VA outpatient treatment records show that VAMC often had trouble contacting the Veteran and he had numerous missed appointments, especially in the 2017 and 2018 timeframe. The Board further observes that the Veteran changed addresses twice, but in 2018, the address of record appeared to be correct as the Veteran responded to other correspondence sent to the same address. The Board has no reason to doubt that the Veteran received adequate notice to his mental health VA examination. By the same token, in light of his testimony that he "never received notification" and that he is willing to report for a new examination, the Board is willing to resolve reasonable doubt in his favor and find good cause in this instance. A remand is warranted to afford the Veteran a new VA examination, to include resolving the conflicting evidence of record. The Veteran is reminded, however, that VA's duty to assist in developing the facts and evidence pertinent to his claim is not a one-way street. See Wood, 1 Vet. App. at 193. He is reminded that it is the responsibility of the Veteran to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). While this matter is on remand, any outstanding VA treatment records should also be obtained, including VA treatment records from May 2020 to the present, as well as any private treatment records not already associated with the claims file. The matter is REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to the claim, to include any ongoing treatment records from Dr. L.I.P. 2. Obtain any additional VA treatment records not currently associated with the claims file, to include any VA treatment records from May 2020 to the present and any records within the VA outpatient treatment records noted as "scanned" into VistA Imaging or CPRS but not associated with the Veteran's claims file. 3. After steps 1 and 2 are complete and records are obtained to the extent possible, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any and all mental health diagnoses found pursuant to the DSM-5. The claims file must be reviewed. For each diagnosis rendered, the examiner is asked to address the following: (a.) Determine whether it is at least as likely as not that the diagnosed mental health condition(s) had an onset in service or is(are) otherwise related to service. (b.) Determine whether it is at least as likely as not that the diagnosed mental health condition(s) was(were) proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected right midfoot DJD with pes planus). The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should consider the Veteran's lay statements reporting his experience of depressive symptoms, as well as any other relevant lay statements, in-service treatment records, private treatment records, or VA treatment records pertaining to the Veteran's mental health, to include the January 2022 private examination report. If any lay statements are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner must provide a complete rationale for any opinion provided based on the examiner's medical expertise, medical principles, and the evidence in the claims file. In particular, the examiner is asked to explain the reasons behind any opinions expressed. 4. After completion of the above development, and of any other development deemed necessary, readjudicate the claim with consideration of all the evidence of record, to include the evidence added to the record since the last January 12, 2019, Supplemental Statement of the Case (SSOC). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David A. F. Litvak 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.