Citation Nr: 18131246
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-30 548
DATE:	August 31, 2018
ORDER
Whether new and material evidence has been received to reopen a claim for a left knee disorder, to include as secondary to service-connected right knee disorder, and if so, whether service connection is warranted is granted.
Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disorder is granted.
Entitlement to service connection for posttraumatic, left hand and fingers osteoarthritis (OA) is denied.
Entitlement to service connection for posttraumatic, right hand and fingers osteoarthritis (OA) is denied.
Entitlement to service connection for a neck disorder, to include as secondary to service-connected postoperative recurrent left shoulder dislocations is denied.
Entitlement to service connection for sleep apnea is denied.
Entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder (MDD) is denied.
REMANDED
Entitlement to service connection for peripheral vascular disease, to include as secondary to service-connected hypertension and hypertensive heart disease is remanded.
FINDINGS OF FACT
1. In a decision, dated February 2011, the Board denied the claim of service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder.
2. Evidence received since the February 2011 Board decision is neither cumulative or redundant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder.
3. The evidence is at least in relative equipoise that the Veteran’s left knee disorder is proximately due to or aggravated by his service-connected right knee disorder.
4. The Veteran’s OA of left hand and fingers did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease.
5. The Veteran’s OA of right hand and fingers did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease.
6. The Veteran’s neck disorder is neither proximately due to nor aggravated beyond its natural progression by his service-connected left shoulder disorder, and is not otherwise related to an in-service injury, event, or disease.
7. The preponderance of the evidence is against finding that the Veteran’s sleep had its onset during service.
8. For the period on appeal, the Veteran’s MDD is manifested with occupational and social impairment with reduced reliability and productivity due to symptoms such as, panic attacks, depressed mood, disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; memory problems; and chronic sleep impairment, among other symptoms.
CONCLUSIONS OF LAW
1. The February 2011 Board decision that denied entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder was final.  38 U.S.C. §§ 511(a), 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017).
2. New and material evidence has been received since the Board’s February 2011 decision, thus the claim for service connection for a left knee disorder, to include as secondary to a right knee disorder is reopened.   38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
3. Resolving all doubt in the Veteran’s favor, the criteria for service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder are met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2017).
4. The criteria for service connection for posttraumatic left hand and fingers OA are not met.  38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017).
5. The criteria for service connection for posttraumatic right hand and fingers OA are not met.  38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017).
6. The criteria for service connection for a neck disorder, to include as secondary to service-connected left shoulder disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2017).
7. The criteria for service connection for sleep apnea are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2017).
8. The criteria for entitlement to an initial rating in excess of 50 percent for service-connected MDD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army from July 1985 to January 1993.
This case comes before the Board on appeal from rating decisions in September 2012, March 2013, January 2014, and September 2015.
This case was previously before the Board in February 2011, where the issue of entitlement to service connection for a left knee disorder was denied.
New and Material Evidence – Left Knee Disorder
A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Evidence is considered “new” if it was not previously submitted to agency decision makers.  “Material” evidence is 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).  In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.”  Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).
Service Connection Claims
Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) 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.”  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303 (d). 
Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes arthritis.  See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1112, 1137 (2012).  First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service.  38 C.F.R. § 3.303(b).  In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service.  38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017).  The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted.
Service connection for a recognized chronic disease can also be established through continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309.  For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b).  For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings.  Id.  When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required.  Id.
Additionally, service connection may be granted on a secondary basis.  Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017).  To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  
1. Whether new and material evidence has been received to reopen a claim for a left knee disorder, to include as secondary to a right knee disorder, and if so, whether service connection is warranted
In this instance, the February 2011 Board decision was final.  As of the February 2011 Board decision, the evidence of record consisted of the Veteran’s service treatment records (STRs), VA examinations, VA and private treatment records, and the Veteran’s lay assertions.  The Board denied the Veteran’s claim highlighting that the VA physician in the November 2007 VA examination, provided a negative nexus opinion between the Veteran’s left knee disorder and his right knee disorder.  Although, the Veteran’s treating physician at the time provided a positive nexus opinion, the physician failed to provide an adequate rationale.  Thus, the Board denied the Veteran’s claim.
However, after the February 2011 Board decision, the Veteran submitted additional evidence in the form of lay statements, May 2012 VA examination, private treatment records and nexus opinion, and VA treatment records.  Specifically, in a May 2012 private treatment record, Dr. R.S. opined that due to the instability of the Veteran’s right knee, his left knee has been overcompensating and has developed degenerative joint disease.  Thus, the positive nexus opinion, which was not of record during the February 2011 decision, is new and material evidence.  
Accordingly, the Veteran’s claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
2. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right knee disorder 
As the Veteran’s claim is reopened, the Board must determine whether the Veteran’s left knee disorder is related to service or proximately due to or aggravated by his service-connected right knee disorder.
At the outset, the Board notes that the Veteran has a current left knee disorder.  See November 2017 VA Examination.  Likewise, the second prong of secondary service connection is met.  The Veteran is service-connected for a right knee disorder.  See February 1994 Rating Decision.  Therefore, the Board must ascertain whether the Veteran’s current left knee disorder was proximately caused by or aggravated by his service-connected right knee disorder.
To this point, there are conflicting medical nexus opinions.  First, in a January 2008 VA medical opinion, the VA physician opined that the Veteran’s left knee disorder was less likely than not related to his service-connected right knee disorder.  The VA physician reasoned that review of orthopedic literature reveals no credible, peer reviewed studies that support the contention that post-traumatic degenerative changes of one joint may induce degenerative changes in another joint either of the effected or contralateral extremity.
Conversely, in a May 2012 private treatment record, Dr. R.S. opined that due to the instability of his right knee, the Veteran’s left knee has been overcompensating and has developed degenerative joint disease.  Even more, the Veteran asserted that his left knee disorder had its onset fifteen years prior to 2007.  He indicated that in a September 2007 treatment note, the VA medical examiner informed him that his left knee is secondary to his service-connected right knee.  Moreover, in an August 1993 VA medical record, the Veteran reported bilateral knee pain especially when he runs.  He indicated that it was not disabling simply uncomfortable.  Although the Veteran is not competent to make a medical diagnosis, his complaint of bilateral knee pain goes to continuity of symptomatology.  Likewise, the examination was within a year of the Veteran’s discharge from service.  Thus, the Veteran’s contentions during the examination support his claim of a left knee disorder.
The Board notes that both medical opinions have inadequacies.  The VA physician’s opinion although based on the record, the Veteran’s lay assertions and medical principles fails to opine on whether the Veteran’s left knee was aggravated by his right knee.  The opinion related only to causation, not aggravation.  Equally, Dr. R.S.’s opinion, although based on the record and the Veteran’s lay assertions, does not controvert the medical literature provided by the VA physician.  However, after a review of all the evidence of record, the evidence is at least in relative equipoise that the Veteran’s left knee disorder was caused by or aggravated by his service-connected right knee disorder.
Accordingly, resolving all doubt in the Veteran’s favor, the claim of entitlement to service connection for a left knee disorder is granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).
3. Entitlement to service connection for posttraumatic left hand and finger OA
Here, the Board notes that the Veteran has a current left hand and finger disability.  In a May 2015 rheumatology consult, the Veteran complained of joint pain affecting both proximal interphalangeal joints (PIPs) and distal interphalangeal joints (DIPs).  On examination, it was revealed that the Veteran had bony hypertrophy.  He had normal inflammatory markers and no evidence of psoriasis or inflammatory OA at that time.  The x-rays were unremarkable, but the physician considered it was most likely OA of his PIPs and DIPs.  
The Board notes, however, that the Veteran’s STRs are silent for any complaints, treatments or a diagnosis of a left hand or finger condition.  There were no entries in the STRs that indicated the Veteran had a hand or finger condition disability during service.  In fact, in the November 1992 discharge examination, there was no indication that the Veteran had a hand or finger condition.  The only conditions indicated were the recurrent left shoulder disorder and hyper cholesterol.  
Moreover, in an August 1993 VA medical record, the Veteran was given a full examination which revealed musculoskeletal issues of bilateral knee pain, a left shoulder disorder, low back pain, and chronic ankle sprain of the left ankle.  The Veteran did not complain of a hand or finger condition, and the examination failed to reveal any hand or finger disorder.
As such, even considering the chronic disease presumption, it is not shown that the Veteran’s left hand and finger OA manifested to a compensable degree within a year of discharge from service.  Likewise, the Veteran’s hand/finger disability is not shown to have occurred during service.
Accordingly, the Board finds that the evidence of record is against a finding of service connection for OA of the left hand/finger.  As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
4. Entitlement to service connection for posttraumatic right hand and finger OA
As discussed above, the Veteran has a current right hand and finger disorder.  The Board notes, however, that the Veteran’s STRs are silent for any complaints, treatments or a diagnosis of a right hand or finger disorder.  There were no entries in the STRs that indicated the Veteran had a right hand or finger disability during service.  In fact, in the November 1992 discharge examination, there was no indication that the Veteran had a hand or finger disorder.  The only disorders noted were the recurrent left shoulder disorder and hyper cholesterol.  
Moreover, in an August 1993 VA medical record, the Veteran was given a full examination which revealed musculoskeletal issues of bilateral knee pain, a left shoulder disorder, low back pain, and chronic ankle sprain of the left ankle.  The Veteran did not complain of a right hand or finger condition, and the examination failed to reveal any hand or finger disorder.
As such, even considering the chronic disease presumption, it is not shown that the Veteran’s right hand and finger OA manifested to a compensable degree within a year of discharge from service.  Likewise, the Veteran’s hand/finger disability is not shown to have occurred during service.
Accordingly, the Board finds that the evidence of record is against a finding of service connection for OA of the right hand/finger.  As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
5. Entitlement to service connection for a neck disorder, to include as secondary to service-connected postoperative recurrent left shoulder dislocations
At the outset, the Veteran has been diagnosed with a cervical spine disorder.  Specifically, in the December 2012 VA examination, the Veteran was diagnosed with cervical spine vertebral body spurs with herniated discs C3/4 and C4/5 with extrusion at C4/5.  
The Board notes, however, that the Veteran’s STRs are silent for any complaints, treatments or a diagnosis of a cervical spine disorder.  There were no entries in the STRs that indicated the Veteran had a neck disability during service.  In fact, in the November 1992 discharge examination, there was no indication that the Veteran had a neck condition.  The only conditions indicated were the recurrent left shoulder disorder and hyper cholesterol.
The Veteran contends that his left shoulder disorder caused neck and lower back pain.  However, after review of the Veteran’s STRs, the Board notes that the Veteran complained of low back pain, especially on the left side, but not neck pain.  In the February 1987 entry, the Veteran was assessed with a muscle strain.  The Veteran did complain of a stiff neck in February 1986; however, this was thought to be caused by strep throat and the Veteran did not have any more complaints of a neck condition.  Even more, in a February 1993 medical record, the Veteran complained of pain in his shoulder that went down his back.  In a January 1997 medical record, the Veteran was seen after left shoulder surgery with complaints of pain in his lower back, specifically on the left side.  He was diagnosed with chronic low back pain.  Again, in an August 1993 VA treatment record, the Veteran was diagnosed with low back pain, but the Veteran did not complain and the examination did not reveal any neck condition.
Moreover, in the December 2012 VA examination, the VA physician opined that the Veteran’s cervical spine disorder is not secondary to the Veteran’s service-connected left shoulder disorder or related to service.  The VA physician reasoned that there is no evidence of any complaints or treatment related to the cervical spine in the STRs.  The record is silent.  The separation exam is negative for any complaints related to the neck and the examination was negative for any neck abnormalities.  There is no interim data proximate to discharge.  Moreover, the VA physician added that there is nothing in the currently accepted, peer reviewed, credible, and authoritative orthopedic literature that demonstrates that an intrinsic condition of a shoulder, with or without surgical correction, will cause intrinsic conditions of the cervical spine.  Thus, the VA physician opined that the current cervical spine condition is not secondary to the service-connected left shoulder condition.
Conversely, in a March 2014 private treatment record, Dr. R.S. opined that it is more likely than not the Veteran’s current cervical spine injuries was caused from injuries during his military service and from falls that have occurred due to his bilateral knee condition.  He added that the Veteran developed cervical radiculopathy associated with arthritis.
The Board finds that VA physician’s opinion to be competent, credible and highly probative.  The physician reviewed the Veteran’s record, considered his lay statements, and provided an opinion based on medical principles and literature.  Dissimilarly, Dr. R.S.’s opinion is not based on an adequate rationale.  Dr. R.S. simply stated that the Veteran’s current injuries were caused from injuries during service and due to falls.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“[M]ost of the probative value of a medical opinion comes from its reasoning.”).  Even more, the Board notes that the Veteran has asserted that his neck condition was the result of his left shoulder disorder not because of falls due to his knee instability.  See December 2012 VA Examination.
Therefore, the preponderance of the evidence is against the Veteran’s claim.  Accordingly, the Board finds that the evidence of record is against a finding of service connection for a neck condition.  As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
6. Entitlement to service connection for sleep apnea
At the outset, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea.  See September 2014 Sleep Medicine Note.  
The Board notes, however, that the Veteran’s STRs are silent for any complaints, treatments or a diagnosis of obstructive sleep apnea.  There were no entries in the STRs that indicated the Veteran had sleep impairment during service.  In fact, in the November 1992 discharge examination, the Veteran indicated that he did not now nor ever had frequent trouble sleeping.  The only conditions indicated were the recurrent left shoulder disorder and hyper cholesterol.  Likewise, in a July 2005 treatment note, the Veteran reported a history of sleep trouble but did not indicate whether this condition persisted since service.
Therefore, the preponderance of the evidence is against the Veteran’s claim for sleep apnea.  Accordingly, the Board finds that the evidence of record is against a finding of service connection for obstructive sleep apnea.  As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


Increased Rating Claim
Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Likewise, separate ratings for distinct periods of time, based on the facts may be for consideration.  Fenderson v. West, 12 Vet. App. 119 (1999).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
7. Entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder (MDD)
In a September 2012 rating decision, the Veteran was granted service connection for MDD with an evaluation of 50 percent effective January 16, 2012.  The Veteran filed his notice of disagreement to the initial rating decision, where he contended that his service-connected MDD warrants an evaluation in excess of 50 percent disabling.  Based on the evidence of record, the Board disagrees.
Under DC 9434, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9434.
A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  Id.
A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. 
The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  See 38 C.F.R. § 4.130.
Here, throughout the appeal period, the Veteran’s MDD manifested with occupational and social impairment with reduced reliability and productivity due to symptoms such as, panic attacks, depressed mood, disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; memory problems; and chronic sleep impairment, among other symptoms.  
Specifically, in a February 2013 mental health note, the Veteran described his mood as sad, in a funk and lonely.  He rated his depression as a 7/10.  Veteran preferred isolation, with feelings of hopelessness and inability to enjoy activities he used to enjoy.  He reported sleep impairment due to nightmares.  He lacked motivation, had low energy level, fluctuating levels in appetite, and decreased concentration.  He denied suicidal ideations, or past suicide attempt.  He presented as irritable with aggressive thoughts but has not acted on them.  The Veteran denied symptoms of mania or psychoses.  
On mental status exam, the Veteran was cooperative with good eye contact.  He related well, was easily engageable.  He was dressed/groomed appropriately for the examination.  He had normal tone and volume, with slow rate of speech.  His affect was blunted.  He was alert and oriented in all spheres, his thought process was coherent, logical and goal directed.  There was no violent ideation, intent or plan.  No auditory or visual hallucinations or delusions.  His concentration was intact, with intact recent and remote memory.  
In treatment records from July 2013 to December 2016, the Veteran’s MDD manifested with varying levels of depression, sleep impairment, lack of motivation and energy, panic attacks, irritability, frustration, anxiety, social isolation, and poor impulse control.
On mental status examinations, the Veteran was often well groomed, alert and oriented in all spheres.  Generally, he was cooperative, no psychomotor retardation or agitation noted.  Likewise, his speech was often normal in volume and tone.  His mood was sometimes sad, euthymic, or mildly dysphoric.  His affect was sometimes full, blunted, reactive, reduced reactive, and appropriate.  The Veteran always denied suicidal/homicidal ideation.  Likewise, he never presented with any visual hallucinations, delusions or paranoia.  Oftentimes, his thought processes were linear, organized and goal-directed, with fair insight and judgment.  
In a January 2017 VA examination, the VA psychologist indicated that the Veteran’s depressive symptoms were a feature of his PTSD.  From the examination, the VA psychologist did not differentiate between the Veteran’s PTSD and his MDD.  The exam revealed that the Veteran’s PTSD with depression caused him to be detached interpersonally, irritable, angry, with numb mood and a loss of interests in activities.  The VA psychologist indicated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  She added that the Veteran’s PTSD with depressive symptoms contributed to 85 to 95 percent of social impairment.  The Veteran had symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; an inability to establish and maintain effective relationships and impaired impulse control.  
The Veteran’s symptoms were not differentiated between his mental disorders.
Conversely, in the November 2017 VA examination, the Veteran’s MDD was separately diagnosed.  The examination revealed that the Veteran’s symptoms of depressed mood and disturbances in motivation and mood were related to his diagnosis of MDD.  Suspiciousness and impaired impulse control were attributable to PTSD.  The two mental disorders had similar symptoms of anxiety; panic attacks; chronic sleep impairment; memory problems; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; an inability to establish and maintain effective relationships.  The VA psychologist indicated that the Veteran’s symptoms of MDD and PTSD overlap, with both contributing equally to his reduced social activity such as forming and maintaining relationships and his ability to work.  Both contributed to the Veteran’s low motivation, sleep problems, appetite problems, lessened interest in pleasurable activities, depressed mood, isolation, and irritability.
The VA psychologist indicated that the Veteran’s mental disorders resulted in occupational and social impairment with reduced reliability and productivity.
The mental status examination revealed that the Veteran was adequately groomed and dressed.  He was friendly and cooperative but became agitated when discussing his children.  There was no evidence of loos associations, flight of ideas, circumstantial speech or tangential speech.  His abstract thinking was good and responded appropriately.  He did report a history of suicidal ideations but no attempts.  He denied any suicidal ideations, plan, or intent during the examination.  He denied past or present homicidal ideations, plan, or intent.  The Veteran denied past or present hallucinations or delusions other than thinking he sees something out the corner of his eyes at times.  He reported paranoia in that he did not trust anyone, but denied obsessional thought processes.  He was alert and oriented in all phases. He did display problems focusing.  The Veteran demonstrated fair to good judgment, with fair insight.  He reported memory problems as well as poor concentration.  
Based on the evidence of record, the Board finds that the Veteran’s service-connected MDD most closely approximated to a 50 percent disability rating.  Throughout the period on appeal, the Veteran exhibited symptoms such as, flattened affect, panic attacks, chronic sleep impairment, impaired memory, disturbances of motivation and mood, anxiety, depressed mood, suspiciousness, and difficulty in establishing and maintaining effective work and social relationships.  Although the Veteran had periods of impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, the degree and manifestation of those symptoms did not warrant a higher rating.  Moreover, his MDD did not manifest with symptoms such as, spatial disorientation, illogical or obscure speech; near-continuous panic or depression affecting the ability to function independently; neglect of personal appearance or hygiene; obsessional rituals; or suicidal ideations.  Therefore, a higher rating is not warranted as the Veteran’s MDD most closely approximated to a 50 percent evaluation for the period on appeal.
Accordingly, the Veteran’s claim must be denied and the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
Entitlement to service connection for peripheral vascular disease, to include as secondary to service-connected hypertension and hypertensive heart disease is remanded.
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).
At the outset, the Veteran has been diagnosed with vascular disease identified as venous insufficiency.  See November 2013 VA Examination.  Moreover, the Board notes that the Veteran is service-connected for hypertension and hypertensive heart disease.  
In the November 2013 VA examination, the VA physician opined that the Veteran’s peripheral vascular disease was less likely as not proximately due to or the result of hypertension.  The VA physician reasoned that the risk factors for the development of chronic venous disease include advancing age, family history of venous disease, ligamentous laxity, prolonged standing, increased body mass index, smoking, sedentary lifestyle, lower extremity trauma, prior venous thrombosis, the presence of an arteriovenous shunt, some hereditary conditions and high estrogen states.  The physician indicates that the Veteran risk factors included increased body mass index and sedentary lifestyle.  The Veteran denied limb aching, heaviness, swelling, itching or significant edema, skin changes or ulceration.  Thus, the VA physician opined in the negative.
The Board notes, however, that the VA physician only opined on causation and did not provide an opinion on aggravation.  Specifically, whether the Veteran’s peripheral vascular disease was aggravated by his service-connected hypertension and hypertensive heart disease.  The Board adds that in Allen v. Brown, 7 Vet. App. 439 (1995), CAVC interpreted the language of 38 C.F.R. § 3.310(b) to mean that an additional disability may be entitled to secondary service connection if it is caused by or aggravated by a service-connected disability.  
Therefore, a remand is necessary to obtain an addendum opinion to determine whether the Veteran’s current condition was aggravated by his service-connected hypertension and hypertensive heart disease.
The matters are REMANDED for the following action:
1. Obtain and associate with the record all relevant outstanding VA and private treatment records.  All records/responses received must be associated with the electronic claims file.  
2. After the foregoing, return the claims file including a copy of this remand to the November 2013 VA physician, or a qualified examiner if the 2013 VA physician is no longer available.  The record and this remand should be reviewed by the examiner and he/she should note that the record has been reviewed.  The physician is asked to address the following:
(a)	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s peripheral vascular disease is proximately caused by his service-connected hypertension and hypertensive heart disease.
(b)	Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s peripheral vascular disease is aggravated (i.e., worsened beyond normal progression) by his service-connected hypertension and hypertensive heart disease.
For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.”  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
If it is determined that the Veteran’s peripheral vascular disease is aggravated beyond its natural progression by his service-connected hypertension and hypertensive heart disease, please discuss whether the baseline level of severity of the peripheral vascular disease is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.
The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.  If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.
3. After completing all actions set forth above and any further action needed because of the above development, readjudicate the service connection claim on appeal, to include service connection on a secondary basis.  If any benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response.  Then return the case to the Board for further appellate review.
 
KRISTI L. GUNN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Umo, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.