Citation Nr: 18154126
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 13-00 280
DATE:	November 29, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, best characterized as major depressive disorder, social anxiety disorder, and somatic symptom disorder, as secondary to service-connected disability, is granted.
Entitlement to service connection for a right hip disorder, currently diagnosed as right hip strain, to include as secondary to service-connected disability, is denied.
REMANDED
Entitlement to a total rating for compensation purposes on the basis of individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder, best characterized as major depressive disorder, social anxiety disorder, and somatic symptom disorder, is proximately due to service-connected disability.
2. The most probative evidence of record does not establish that it is at least as likely as not that the Veteran’s currently diagnosed right hip strain manifested in service, is otherwise etiologically related to service, or was caused or aggravated by service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for secondary service connection for an acquired psychiatric disorder, best characterized as major depressive disorder, social anxiety disorder, and somatic symptom disorder, are met.  38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017).
2. The criteria for service connection for a right hip disorder, currently diagnosed as right hip strain, to include as secondary to service-connected disability, are not met.  38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1978 to October 1984. 
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  
This case was most recently before the Board in September 2016, when the Board remanded the issues of entitlement to service connection for a right hip disorder, a left shoulder disorder and an acquired psychiatric disorder, as well as the issue of entitlement to a TDIU, for additional development.  Thereafter, an October 2017 rating decision granted service connection for acromioclavicular joint osteoarthritis with rotator cuff tendinosis of the left shoulder, thus entitlement to service connection for a left shoulder disability is no longer before the Board, although an appeal has been initiated with respect to the initial evaluation assigned.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  The remaining issues now return for appellate review.  
In May 2015, the Veteran appeared at a Board hearing before Veterans Law Judge (VLJ) Cheryl Mason.  Since that time, VLJ Mason was sworn in as the Board’s Chairman.  Pursuant to 38 U.S.C. § 7102 (b), a proceeding may not be assigned to the Chairman as an individual member.  However, the Chairman may participate in a proceeding, such as this, which has been assigned to a panel.  In July 2018, the Veteran was offered another hearing before the other Veterans Law Judges assigned to decide his appeal, which his representative declined in August 2018.
The issue of entitlement to an increased rating for bilateral hearing loss, currently rated noncompensable prior to July 18, 2017 and 30 percent from July 18, 2017, is the subject of a separate decision of the Board as this issue was not addressed in the May 2015 Board hearing, and thus, a panel decision addressing the claim is not warranted.  
As a final initial matter, additional evidence, consisting of the Veteran’s Vocational Rehabilitation and Employment file, was associated with the claims file in January 2018, subsequent to the most recent, October 2017, supplemental statement of the case issued for the claims herein.  Neither the Veteran nor his representative waived review of this evidence by the Agency of Original Jurisdiction (AOJ).  See 38 C.F.R. § 20.1304 (c) (2017).  However, in light of the favorable decision below, which grants entitlement to service connection for an acquired psychiatric disorder, and as the issue of entitlement to a TDIU must be remanded for additional development, there is no prejudice to the Veteran by the Board’s current appellate consideration in this regard.  Further, there is no indication that the Veteran’s Vocational Rehabilitation and Employment file is relevant to the claim of service connection for a right hip disorder as demonstration of a current right hip disorder is acknowledged below.  As such, a remand for the additional evidence to be considered by the AOJ for these issues is not warranted.  

Service Connection
Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 
Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disability.  38 C.F.R. § 3.310 (2017).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability
In his claim for service connection for an acquired psychiatric disorder, which was received by VA on February 25, 2009, the Veteran asserted service connection for an acquired psychiatric disability was warranted as secondary to service-connected disability.  In this regard, as relevant to the claim, service connection for a left knee disability, a left shoulder disability, and a right hand disability were all awarded during the pendency of the claim.
The clinical evidence of record reflects the Veteran has psychiatric disability, variously diagnosed.  Specifically, a September 2009 VA examiner endorsed diagnoses of adjustment disorder with depressive features, related to wife’s death, intermittent explosive disorder, marijuana dependence, continuous, alcohol dependence, in full remission, and depressive disorder, not otherwise specified (NOS), and in an April 2014 addendum opinion, the same examiner found no change in these diagnoses.  
Thereafter, a November 2015 VA examiner endorsed a diagnosis of intermittent explosive disorder.  Most recently, a December 2016 VA examiner endorsed diagnoses of cannabis use disorder, opiate use disorder, and alcohol use disorder.  Further, the December 2016 VA examiner found that with respect to the September 2009 examiner’s diagnoses of adjustment disorder and a depressive disorder, there was insufficient evidence the Veteran was currently suffering from these disorders, as since the last examination, the Veteran has been screened for and asked about symptoms pertinent to adjustment disorders and depressive disorders, and the results consistently had been negative, nor were such symptoms endorsed upon the current examination.  Further, the December 2016 VA examiner found that although the Veteran had historically been diagnosed with intermittent explosive disorder, currently he did not meet DSM 5 criteria as the alcohol and stimulants were well known associations with verbal aggression and/or behavioral outbursts.
Conversely, an October 2016 private examiner endorsed diagnoses of major depressive disorder, recurrent, without psychotic features, social anxiety disorder and somatic symptom disorder, recurrent, with predominant persistent pain.  The October 2016 private examiner explained that these diagnoses represented a synthesis and clarification of the Veteran’s previous diagnoses of intermittent explosive disorder, explosive behaviour, explosive disorder, major depression, mood disorder, bipolar disorder, and affective mood disorder.  The Board finds these diagnoses closely relate to the initial September 2009 VA examiner’s diagnoses of adjustment disorder with depressive features, intermittent explosive disorder, and depressive disorder, NOS, and thus the Board finds that these more accurately capture the Veteran’s psychiatric disability throughout the appeal period.  Thus, the Veteran is acknowledged to have acquired psychiatric disability, variously diagnosed, but best characterized major depressive disorder, social anxiety disorder, and somatic symptom disorder.
With regard to whether the Veteran’s acquired psychiatric disorders are secondary to his service-connected disabilities, while the September 2009 VA examiner endorsed a diagnosis of adjustment disorder with depressive features, related to his wife’s death, the examiner also endorsed a diagnosis of depressive disorder, not otherwise specified (NOS).  Nevertheless, prior Board remands found the September 2009 and November 2015 VA examiners’ opinions to be inadequate, thus, further discussion of these opinions is not warranted.  Additionally, the December 2016 VA examiner provided a negative nexus opinion on a secondary basis, the examiner only addressed the currently endorsed diagnoses related to substance abuse, and thus this opinion lacks probative value.  
Conversely, in a report of an October 2016 psychological evaluation, a private examiner opined that the Veteran more likely than not suffered from major depression that has been aggravated beyond its natural progression by his service-connected left knee disability, based on the Veteran’s self-report of continuing to frequently experience symptoms of depression, his chronic physical pain caused by his service-connected left knee disability, review of his claims file, and his responses on eight evaluation questionnaires.  Such is consistent with the September 2009 VA examiner’s finding that the long term pain the Veteran experienced over the years appears to have aggravated and contributed to depression, and that it was likely the injuries he suffered lowered his impaired functioning due to depression from a moderate level to the higher end of the serious range.  The October 2016 private examiner also found it was at least as likely as not that the Veteran’s somatic symptom disorder was secondary to his left knee disability, and that it was also at least as likely as not that his social anxiety disorder was secondary to both his depression and his left knee disability.  
Thus, as set forth above, the record contains a positive nexus medical opinion regarding secondary service connection as provided by the October 2016 private examiner, with an adequate rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The October 2016 private examiner explained that the Veteran’s medical records clearly showed that, post his discharge from the Navy, he repeatedly reported experiencing depression, and severe chronic pain due to his service-connected injuries, and cited an article for a finding, in part, that depression leads to isolation and isolation leads to further depression, that pain causes fear of movement and immobility creates the conditions for further pain.  Similarly, the October 2016 private examiner found the Veteran’s social anxiety was concomitant with recurrent moderate depression and chronic debilitating pain specifically related to the service-connected limb injuries he sustained in August 1981.  The October 2016 private examiner also found that, as with the Veteran’s depression, his somatic symptom disorder reflected his psychological reactions to chronic pain resulting from his service-connected injuries.  These findings are akin to findings that the Veteran’s acquired psychiatric disorders are proximately due to his service-connected left knee disability.  
Under the benefit of the doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the veteran shall prevail upon the issue.  Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s major depressive disorder, social anxiety disorder, and somatic symptom disorder, are proximately due to service-connected disability.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.310 (b); Gilbert v. Derwinski, 1 Vet. App. 4 (1990).  Accordingly, the Veteran’s claim for service connection is granted on this basis.
2. Entitlement to service connection for a right hip disorder, including as secondary to service-connected disability
The Veteran contends that he has a right hip disability that is secondary to his service-connected left knee disability.  Specifically, in May 2015 testimony, he reported that he started having problems with his hips shortly after he hurt his knee resulting in a first surgery in 1985, but his hip was not as bad until probably the third knee surgery, in the late 1980s, when he received prosthetics in his shoes to help him walk better.  
The Board’s adjudication will consider whether the Veteran has a current right hip disorder that began during service, or which is at least as likely as not etiologically related to an in-service injury, event, or disease, or which is proximately due to, or chronically aggravated by, service-connected left knee disability.
With respect to a current disability, a September 2017 VA examiner evaluated the Veteran and endorsed a diagnosis of right hip strain.  However, the September 2017 examiner also reported, in part, that considering the Veteran’s age and history, he most likely had some degree of right hip osteoarthritis, but since that had not been documented by x-ray, the term “hip strain” was used as a diagnosis.  Thus, the Board finds that the Veteran has a current right hip disability, best characterized as right hip strain.  
While the Veteran has a current diagnosis related to his right hip, service connection for a right hip disorder as proximately due to, the result of, or chronically aggravated beyond its natural progression by, a service-connected left knee disability is not warranted.  In this respect, the Veteran is service-connected for residuals of a left knee injury with ligamentous strain, status post medial plica release and lateral release.  Concerning any relationship between the current right hip disorder and service-connected left knee disability, the September 2017 VA examiner opined the Veteran’s chronic right hip strain was less likely as not proximately due to or aggravated by his residuals of left knee injury with ligamentous strain, status post medial plica release and lateral release.  The September 2017 VA examiner noted that the Veteran’s statement that symptoms began in service and continued intermittently to the present had been considered, as well as the evidence of serious motor vehicle accidents after service.  
The September 2017 VA examiner explained that as opposed to the commonly-held idea that “favoring one leg” causes orthopedic conditions in other parts of the body, there was no clear evidence from review of orthopedic literature to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than five centimeters so that the individual’s gait pattern had been altered to the extent that clinically there was an obvious lurching type gait (a significant limp).  Further, the September 2017 examiner explained that in order for this type of gait to have impact on the opposite or uninjured leg, it was likely that the abnormal gait or limp would need to be present over an extended period of time, in terms of years.  
Thus, the September 2017 VA examiner found that, rationally, it would seem that patients with painful orthopedic conditions, would tend to be more cautious and gentle with less risk of trauma to the other joints.  The September 2017 VA examiner did not find sufficient evidence of a moderate or severe, lurching-type limp in the available record.  Therefore, the September 2017 VA examiner found, after careful review of the available record, there was not sufficient evidence to indicate that there was a 50 percent likelihood of a causative or permanently aggravating nexus between the Veteran’s service-connected left knee condition and his current right hip condition.  Further, it is noted that the Veteran is also service connected for bilateral hearing loss, a left shoulder disability, and boxer’s fracture of the right fifth metacarpal; however, there is no indication, by the Veteran or the record, that his right hip disorder is secondary to these disabilities.  Accordingly, service connection for a right hip disorder on a secondary basis is not warranted.  38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448.
Service connection may also be granted on a direct incurrence basis, but the preponderance of the evidence is also against finding that the Veteran’s right hip disorder is related to an in-service injury, event, or disease.  The Veteran has not identified a specific incident or event during service as a link to his right hip disorder.  Rather, he has asserted solely that his right hip disability is secondary to his service-connected left knee disability.  Consistent with such, a review of the Veteran’s service treatment records reveals no diagnoses of a right hip disorder or symptoms thereof.  Furthermore, an August 1984 in-service examination, conducted in conjunction with separation from service, found in pertinent part, the Veteran’s lower extremities, as pertinent to his right hip, were clinically normal upon examination, which also weighs against a finding of an in-service injury or event.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (d).
Further, as the September 2017 examiner also reported that considering the Veteran’s age and history, he most likely had some degree of right hip osteoarthritis, the Board has considered whether there is competent credible evidence of continuity of symptomatology of this disability, or whether such manifest to a compensable degree within one year of separation, but finds in each case that there is not.  Specifically, the evidence does not demonstrate arthritis of the right hip arose during service or arose within one year of discharge from service.  In fact, arthritis of the right hip has not been objectively clinically demonstrated.
A January 1985 VA examination documented the Veteran’s musculoskeletal system revealed no anatomic deformity.  The Veteran was also afforded VA joints examinations in July 1997, December 1997 and January 2001, which did not document any right hip complaints.  Similarly, a May 2000 VA treatment record checked the boxes indicating the existence as to any improvement with pain, swelling and function as to the Veteran’s wrist, shoulder, knee, spine and ankle; however, the box for the Veteran’s hip was not checked.  The first documented complaint of a hip disorder was in a July 2000 VA treatment record, in which the Veteran inquired as to whether left knee trouble could be the cause of “hip” ache; however, the treatment record did not endorse a diagnosis.  Similarly, a January 2001 VA treatment record documented that the Veteran admitted to pain in the left knee, hip and back upon walking and did not specifically endorse diagnosis as to the right hip but only a endorsed a general diagnosis of musculoskeletal pain relieved with Vicodin and rest.  Thus, the preponderance of the evidence is therefore also against service connection for arthritis of the right hip on a presumptive basis as a chronic disease or on the basis of continuity of symptomatology.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 718 F.3d at 1331.
In reviewing the Veteran’s claim for service connection for a right hip disorder, the Board reviewed the statements and testimony of the Veteran.  The Veteran is competent to describe the extent of his current symptomatology related to his right hip disorder and the Board considered the Veteran’s assertions that his right hip disorder is secondary to his service-connected left knee disability.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board notes, however, that there is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render him competent to offer an opinion as to whether any current right hip disorder is related to service, or proximately due to or aggravated by service-connected left knee disability, as such falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  
Moreover, the Board assigns greater probative value to the opinion provided by the September 2017 examiner.  The September 2017 examiner has medical knowledge, provided an opinion predicated on a full overview of the entire relevant record, and was specifically tasked to present a nexus opinion after review of the evidence.  The September 2017 examiner explained the reasons for the conclusion based on review of the record.  Thus, this opinion is entitled to substantial probative weight.  Nieves-Rodriguez, 22 Vet. App. at 304.
Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a right hip disorder.  In reaching the above conclusions, the Board considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56.
REASONS FOR REMAND
The AOJ must be afforded the opportunity to adjudicate entitlement to a TDIU with consideration of the Board’s grant in the decision above of service connection for major depressive disorder, social anxiety disorder, and somatic symptom disorder.  
The matters are REMANDED for the following actions:
1. Readjudicate the issue of entitlement to a TDIU with consideration of the Board’s grant in the decision above of entitlement to service connection for major depressive disorder, social anxiety disorder, and somatic symptom disorder.  If the AOJ finds that the Veteran has been rendered unemployable due to service-connected disabilities, but that the schedular rating criteria outlined in 38 C.F.R. § 4.16(a) are not met, after the assignment of the initial evaluation for service-connected major depressive disorder, social anxiety disorder, and somatic symptom disorder, refer the case to the Director, Compensation Service, for a determination as to whether the Veteran’s service-connected disabilities warrant the assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b).
2. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.
 
 
T. REYNOLDS
Veterans Law Judge
Board of Veterans’ Appeals
 
 
CHERYL L. MASON
Veterans Law Judge
Board of Veterans’ Appeals
 
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Espinoza, Counsel 

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