Citation Nr: A25035339 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240903-470294 DATE: April 16, 2025 ORDER Service connection for a psychiatric disability, diagnosed as Other Specified Depressive Disorder, is granted. FINDING OF FACT The Veteran's psychiatric disability, diagnosed as Other Specified Depressive Disorder, is causally related to his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability, diagnosed as Other Specified Depressive Disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1993. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This appeal comes before the Board from a December 2023 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ); therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. By way of background, in August 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim (Supplemental Claim) requesting service connection for depression and indicated the claim had been previously addressed in a June 24, 2023 rating decision. Review of the record does not show a June 24, 2023, rating decision associated with the Veteran's file; however, the record does include a June 24, 2023, Supplemental Claim requesting service connection for depression previously addressed in a May 2, 2019, rating decision. In December 2023 (with notice dated December 7, 2023), the AOJ issued a Supplemental Claim rating decision finding that new and relevant evidence had been received to reconsider the Veteran's depression service connection claim but that the evidence did not support a change in the previous decision. Under the AMA, the AOJ's finding of new and relevant evidence is a favorable finding by which the Board is bound. 38 C.F.R. § 3.104(c). Therefore, the matter of whether new and relevant evidence was received will not be revisited. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 AOJ decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider as to the claims adjudicated in this decision, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision addressing this claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to service connection for a psychiatric disability, diagnosed as Other Specified Depressive Disorder, is granted. The Veteran seeks service connection for a psychiatric disability due to pain and functional loss secondary to his service-connected orthopedic disabilities. As the issue of entitlement to service connection on a direct basis has not been raised by the Veteran nor reasonably raised by the evidence, the Board need not address this theory of entitlement. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). The favorable finding noted in the December 2023 rating decision is that the Veteran has been diagnosed with a disability because the August 2023 VA examination report shows a diagnosis of Other Specified Depressive Disorder, secondary to physical problems and limitations. This favorable finding by the AOJ is binding on the Board in the absence of evidence of clear and unmistakable error. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Additionally, the record reflects that the Veteran has been awarded service connection for lumbosacral spine degenerative changes with foraminal stenosis and strain, right knee instability, bilateral lower extremity radiculopathy of the sciatic nerve, right knee limitation of motion and tinnitus. Hence, the first two elements required for secondary service connection have been satisfied. The remaining question for resolution is whether the Veteran's current psychiatric disability is etiologically related to his service-connected disabilities. VA treatment records show that the Veteran had been attending the pain clinic in January 2019 (thus, prior to the current appeal period since receipt of his 2023 Supplemental Claim) and underwent an assessment for psychological and behavioral factors associated with pain. He reported low back pain, bilateral hip pain, and bilateral knee pain for the past 28 years with a significant increase in pain intensity over the past 10 years. He described his pain as "intolerable" and reported feeling irritable, fatigued, and having difficulty showering. He endorsed symptoms of depression (anhedonia, low mood, decreased appetite, feelings of worthlessness), insomnia, daytime fatigue, and anxiety. The Veteran declined mental health treatment, stating that it is a "sign of weakness." These records show resumed mental health consultation in April 2023, proximate to the period on appeal, when he reported realizing about six years previously that he could not physically move as he had been able to move months prior and began to experience a depressed mood and anxiety. The August 2023 VA mental disorders examination report shows a diagnosis of Other Specified Depressive Disorder, secondary to physical problems and limitations. It is also noted that medical diagnoses relevant to the understanding or management of the Veteran's mental health disorder include residuals of lumbosacral strain with degenerative changes, right knee instability, radiculopathy of the left and right lower extremities, right knee strain with osteoarthritis, and tinnitus. The examiner noted that the Veteran endorsed symptoms of a depressed mood, anhedonia, sleep disturbances, having little energy, a poor appetite, and thoughts of worthlessness. The Veteran indicated that he finds it is "very difficult" to perform life tasks due to his symptoms and he is experiencing significant difficulty coping with his physical pain and resulting limitations. Upon review of the record, it is noted that the August 2023 VA examination report does not include an opinion as to the etiology of the Veteran's psychiatric disability and a medical nexus opinion has not been obtained. However, the diagnosis provided by the examiner is Other Specified Depressive Disorder, secondary to physical problems and limitations, and the examiner listed the Veteran's service-connected disabilities as medical diagnoses relevant to understanding or managing his mental health disability. As such, the evidence persuasively shows the Veteran's psychiatric disability is secondary to his service-connected disabilities and remand to obtain a medical nexus opinion is not necessary. As the August 2023 VA examination report is based on interview and examination of the Veteran and review of his claims file, it is entitled to significant probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Further, there is no medical opinion evidence to the contrary and VA has been cautioned against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, after resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disability secondary to the Veteran's service-connected disabilities is warranted. As the criteria for service connection have been met, the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hughes, Kshama 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.