Citation Nr: 22038167 Decision Date: 07/05/22 Archive Date: 07/05/22 DOCKET NO. 17-06 739 DATE: July 5, 2022 ORDER New and material evidence has been received, and the claim for entitlement to service connection for major depressive disorder is reopened. Entitlement to service connection for major depressive disorder, as secondary to a service-connected back disability, is granted. REMANDED Entitlement to a disability rating in excess of 60 percent for a service-connected back disability is remanded. FINDINGS OF FACT 1. A May 2009 rating decision denied the claim for entitlement to service connection for major depressive disorder; the Veteran did not appeal this decision. 2. The evidence associated with the claims file following the May 2009 rating decision is new and material to the Veteran's claim for entitlement to service connection for major depressive disorder. 3. Resolving all doubt in favor of the Veteran, it is at least as likely as not that the Veteran's major depressive disorder is related to his service-connected back disability. CONCLUSIONS OF LAW 1. The May 2009 rating decision is final as to the denial of service connection for major depressive disorder. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for major depressive disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a March 2022 videoconference hearing. A transcript of that hearing is associated with the claims file. 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for major depressive disorder The Veteran's claim for service connection for major depressive disorder was most recently denied by the RO in a May 2009 rating decision. The Veteran did not appeal the decision or submit new and material evidence within 1 year of its issuance, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran now asserts that evidence has been presented to warrant service connection for major depressive disorder. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board finds that new and material evidence regarding the Veteran's claimed psychiatric disability has been received since the May 2009 denial, to include post-service treatment records, an August 2013 VA examination, and his March 2022 testimony. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board holds that the threshold for reopening the claim has been met, and the claim for service connection for major depressive disorder is reopened. 2. Entitlement to service connection for major depressive disorder, to include as secondary to a service-connected back disability The Veteran contends that he is entitled to service connection for major depressive disorder as secondary to his service-connected back disability. Specifically, he states that his depression is linked to his poorly managed back pain. Service connection may be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran's post-service treatment records document ongoing treatment for major depressive disorder. Accordingly, the requirements of Wallin element (1) have been satisfied. Additionally, the Veteran is currently service connected for degenerative disc disease of the lumbar spine with mild bilateral radiculopathy and osteoarthritis. As such, the requirements of Wallin element (2) have been satisfied. The question before the Board is whether there is a nexus between the Veteran's major depressive disorder and service-connected back disability. The Veteran's post-service treatment records reflect an extensive history of mental health treatment. In September 2012, the Veteran was noted to have "chronic physical problems" causing his depression and that the depression worsened "in the context of his chronic pain." He previously reported that he has been prescribed pain medication since his in-service back injury with varying results in pain management. The Veteran was afforded a VA examination in August 2013. At that time, the Veteran reported that he smoked marijuana and drank during and after service. Additionally, the Veteran reported that he began using cocaine after service to alleviate his back pain. He stopped using marijuana and cocaine in 2007. He is prescribed pain medication for his back but sometimes had to go to the emergency room for extra relief. The Veteran stated that if he had no pain, he did not believe he would have depression, noting that his back pain limits him from doing anything physical. The examiner opined that the Veteran's diagnosis of major depressive disorder is less likely as not due to or the result of his back disability and less likely as not aggravated by the back disability. The rationale was that the Veteran had a long history of alcohol and drug abuse beginning in his military service and becoming worse following his discharge through 2007. At the same time, the examiner noted that the Veteran has been prescribed pain medication for his back that he continues to use today. The examiner stated that long term drug and alcohol abuse and dependence has been shown to cause depression as does long term use of prescription pain killers. VA treatment records dated in March 2020 from Dr. J.W., psychiatrist, note the Veteran's complaints of depression related to chronic back pain. Dr. J.W. stated that the Veteran was hospitalized once in his 40s after he attempted to jump off a second-floor balcony due to pain. She diagnosed him with major depressive disorder, moderate secondary to medical condition/chronic pain component and chronic pain syndrome (intervertebral disc syndrome) with resulting depression. During the March 2022 Board hearing, the Veteran testified that after he was discharged from service, he was prescribed medicine, but he continued to have back pain. He stated that his current psychiatrist is trying to improve his depression by managing his pain and it is really helping him. Upon review of the evidence of record, the Board finds that entitlement to service connection for major depressive disorder is warranted. In so finding, the Board assigns great probative value to the contemporaneous post-service treatment records documenting the Veteran's reports of depression related to his back pain. Most notably, the March 2020 treatment records from Dr. J.W. state that the Veteran's chronic back pain resulted in depression. These notes are thorough and are based on a contemporaneous reporting of and treatment for the condition. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the August 2013 VA examiner provided a negative nexus opinion, the examiner attributed the Veteran's depression to a history of drug use, which the Veteran stated was related to his back pain. The rationale does not consider the Veteran's competent, credible statements in this regard. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that an examiner must address lay statements to provide an adequate medical opinion). Additionally, the examiner's rationale appeared to address a correlation between drug use and depression rather than address the cause of the Veteran's depression. For these reasons, the Board affords the opinion limited probative value. Thus, based on the available evidence and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the evidence supports the existence of a relationship between the Veteran's diagnosed major depressive disorder and his service-connected back disability. Therefore, the Board finds that the final element for secondary service connection has been met. Entitlement to service connection for major depressive disorder, on a secondary basis, is warranted; the claim is granted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent for a service-connected back disability is remanded. The Veteran's service-connected back disability is currently evaluated as "degenerative disc disease of the lumbar spine with mild bilateral radiculopathy and osteoarthritis" and is assigned a 60 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243. He asserts that an increased disability rating is warranted. Specifically, during the March 2022 Board hearing, the Veteran asserted that his back will occasionally lock up, resulting in ankylosis. Additionally, the Veteran reported that his back disability had worsened since his most recent examination in May 2016. Turning to the evidence of record, the May 2016 VA examination of the Veteran's lumbar spine is inadequate for adjudicative purposes. Specifically, while the examiner noted pain on all ranges of motion, the examination report did not include the point at which pain began. Additionally, while the examiner noted pain on weight bearing, the report does not include range of motion testing in weight bearing or with passive range of motion. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances on both the service-connected and the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, the Veteran's lay statements seem to endorse a history of flare-ups that result in pain that renders him unable to move his lower back. The Board notes the holding in the recent case of Chavis v. McDonough, in which the Court determined that in assessing musculoskeletal disabilities, the Board must address whether ankylosis can be met by symptoms representing the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, the examiner should address the extent of the Veteran's functional loss during flare-ups. Finally, during the March 2022 Board hearing, the Veteran asserted that he should have separate disability ratings for his lower extremity radiculopathy, which the examiner related to his service-connected back disability. On remand, the examiner should also address the objective neurologic abnormalities associated with the Veteran's service-connected back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the severity of his service connected back disability. The VA examiner must review the claims file in conjunction with the examination. The examiner should respond to the following: (a.) The examiner must test the Veteran's lumbar spine range of motion on both active and passive motion, on weight-bearing and non-weight-bearing, if possible. If such testing is not possible, the examiner should indicate why this is so. (b.) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c.) The examiner must comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d.) The examiner must provide a thorough discussion as to whether the Veteran's back disability symptoms amount to "functional ankylosis," or the equivalent of fixation in flexion or extension, to include during flare-ups. In offering this conclusion, the examiner must specifically discuss the Veteran's testimony at his March 2022 hearing regarding symptoms he experiences during flare-ups. If the examiner opines that the Veteran's symptoms amount to functional ankylosis of the lumbar spine at any point during the appeals period, please provide (1) an estimated onset date of functional ankylosis, and (2) indicate whether such ankylosis is favorable or unfavorable, citing to the evidence of record relied upon to make such an estimate. In rendering the above opinion, the examiner should specifically address the Veteran's lay statements endorsing a history of flare-ups that result in pain that renders him unable to move his back. (e.) The examiner should identify all neurologic abnormalities attributed to the Veteran's service connected back disability. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.