MAJOR DEPRESSIVE DISORDER

Summary

The veteran, who served in the U.S. Air Force from August 1991 to March 2001, appeals the denial of service connection for depressive disorder and left hip pain, and the grant of service connection for left lower extremity (LLE) radiculopathy. The veteran claimed these conditions were secondary to his service-connected back disability and left knee condition. The Board found the veteran failed to report for scheduled VA examinations for depressive disorder and left hip pain, and did not provide good cause for this failure, necessitating a decision based on the evidence of record. For depressive disorder, the Board found the private medical opinion inadequate due to inconsistencies with VA treatment records and a lack of clear rationale or review of medical history. The veteran's own assertions about the etiology of his depression were deemed incompetent. For left hip pain, the Board also found the private opinion inadequate, citing inconsistencies between the examiner's findings of an altered gait and VA treatment records showing a normal gait. The Board noted the private examiner's opinion was also inconsistent with VA treatment records and lacked a clear rationale. For LLE radiculopathy, the Board found the evidence demonstrated the condition was secondary to the service-connected back condition, granting service connection. The Board acknowledged the veteran's contentions regarding private medical evidence but reiterated the need for VA examinations and the veteran's duty to assist in claim development.

Rationale

Private opinion inadequate due to inconsistencies with VA treatment records; Lack of clear rationale or review of medical history in private opinion; Veteran's assertions on etiology deemed incompetent

Full Decision Text

Citation Nr: A25104968
Decision Date: 12/05/25	Archive Date: 12/05/25

DOCKET NO. 250123-519290
DATE: December 5, 2025

ORDER

Entitlement to service connection for depressive disorder, to include as secondary to service-connected right lower radial nerve and lumbar degenerative disease (back disability) is denied.

Entitlement to service connection for left hip pain, to include as secondary to left knee tear, status post repair with residual pain (left knee disability) is denied.

Entitlement to service connection for lumbar left lower extremity (LLE) radiculopathy, to include as secondary to a back disability is granted.

FINDINGS OF FACT

1. The Veteran cancelled all necessary examinations in connection with his claim for service connection for LLE radiculopathy, depressive disorder, and left hip pain without explanation or attempt to reschedule.

2. The Veteran's depressive disorder is not shown to be related to a service-connected disability.

3. The Veteran's left hip pain is not shown to be related to a service-connected disability.

4. LLE radiculopathy is secondary to the Veteran's service-connected back condition.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for depressive disorder secondary to service-connected right lower radial nerve and lumbar degenerative disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for entitlement to service connection for left hip pain secondary to left knee tear, status post repair with residual pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for entitlement to service connection for lumbar left lower extremity radiculopathy secondary to a back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the U.S. Air Force from August 1991 to March 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2024 higher level review (HLR) decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The HLR decision was based on the record at the time of an April 2024 rating decision. 38 C.F.R. § 3.2601.

In January 2025, the Veteran submitted a notice of disagreement (VA Form 10182, NOD) and elected the Evidence Submission docket. Under Evidence Submission, the Board considers the same evidence of record as the AOJ (April 2024 rating decision), as well as evidence submitted by the Veteran or his representative with, or within 90 days following, the Form 10182. 38 C.F.R. §§ 3.2601, 20.303.

Service Connection

The Veteran does not allege, and the evidence does not show, that the claimed disabilities had their origin in service; instead, he alleges solely that they have developed as secondary to the already service-connected low back and left knee disabilities.

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based
 the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.

In February 2024, a VA contracted medical provider attempted to schedule a VA examination for the Veteran's claimed conditions. 

In a May 2024 Veteran's representative statement, the representative wrote that the Veteran was contacted by the VA contracted medical providers to be scheduled for a VA examination. The Veteran's representative indicated that they wanted to cancel all upcoming appointments and utilize the medical evidence submitted.

The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must bear some responsibility in substantiating his claim and has not done so.

The Board acknowledges the Veteran's contentions that a VA examination was not necessary because he submitted a private disability questionnaire. However, the submission of a private examination report does not diminish or eliminate the need for a VA examination, and the submission of a private examination report is not an example of good cause as shown under 38 C.F.R. § 3.655(a) for failure to report for a VA examination. See also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). While the VA system is non-adversarial and pro-claimant, a veteran still has an obligation to assist in developing his or her claim, and VA to ensure there is a complete and accurate record on which to render an informed decision. See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Douglas v. Shinseki, 23 Vet. App. 19 (2009).

Under these circumstances, the Board finds that because the Veteran failed to report for examinations scheduled in conjunction with his compensation claim for LLE radiculopathy, depressive disorder, and left hip pain and has not provided good cause for such failure, the Board shall decide the claims based on the evidence of record.

Depressive Disorder 

The Veteran contends that his depressive disorder is related to his service-connected disabilities. 

A May 2023 VA treatment record documented that the Veteran had a negative anxiety and depression screening. A June 2023 VA treatment note documented that the Veteran denied mental health problems. An August 2023 VA treatment note documented that the Veteran had anxiety about his upcoming scheduled ankle surgery; the provider reported anxiety was relieved with discussion of the procedure. 

In December 2023, the Veteran submitted a mental disorders disability benefits questionnaire (DBQ). The Veteran was diagnosed with depressive disorder. Dr. BM, a clinical psychologist, indicated that a review of the complete file was completed "via the agent." The Veteran reported that his pain caused him to be irritable in his reactions with friends and family. The Veteran reported that his service-connected medical conditions negatively impacted his occupational activity. Dr. BM indicated that the Veteran had symptoms of depressed mood, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation. The examiner opined that the Veteran's depressive disorder was secondary to right major radial digital nerve neuropathy statis post laceration, RLE radiculopathy associated with lumbar degenerative disease, and left knee acromioclavicular ligament tear and meniscal tear. The examiner indicated that the Veteran's depressive disorder was related to pain from his service-connected conditions Dr. BM remarked that the
 depressed mood, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation. The examiner opined that the Veteran's depressive disorder was secondary to right major radial digital nerve neuropathy statis post laceration, RLE radiculopathy associated with lumbar degenerative disease, and left knee acromioclavicular ligament tear and meniscal tear. The examiner indicated that the Veteran's depressive disorder was related to pain from his service-connected conditions Dr. BM remarked that the psycho-physiological aspect was because the subjective experience of frequent distress was often associated with debilitating consequences including psychological stress, social isolation, and cognitive impairment. The prolonged experience of frequent distress and its psychological consequences could act as a prodrome to mental illness, notably major depressive disorder. Dr. BM indicated that the Veteran's symptoms were predominantly concerning for a major depressive-like episode that was directly linked to his medical conditions.  

A February 2024 VA treatment note documented that the Veteran stopped taking duloxetine. The Veteran felt that the medication negatively impacted his memory. 

The Board finds the December 2023 private opinion inadequate for adjudication purposes. The Board notes that Dr. BM indicated that a review of the complete file was completed "via the agent." This is unclear; it is not evident from the report whether the doctor independently reviewed records, was provided records by the agent, or received a summary of them.  Her discussion cites no records or documented medical history, and repeats only current allegations. Importantly, the DBQ findings were inconsistent with VA treatment records and internally.

The Veteran asserted his belief in a connection, while a lay person is competent to testify about his observable symptoms, or to report what a doctor has told him, only a medical professional is competent to provide a diagnosis and etiology. As a lay person lacking the necessary training and knowledge to do so, the Veteran is not competent to render an opinion as to the etiology of the claimed condition. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

There is no objective medical evidence linking a mental disorder to the Veteran's service-connected conditions. There is no adequate opinion of record relating the Veteran's mental disorder to a service-connected condition. The private examiner's findings and rationale are inconsistent with the record. Also, the examiner did not discuss any potentially relevant records or medical studies. 

Again, it is noted that results expected from a VA examination are not available due to the cancellation and failure to assist with scheduling by the Veteran, and he has not submitted any additional evidence under the evidence submission lane of his appeal.  Accordingly, service connection for a depressive disorder is not warranted.

Left Hip 

The Veteran contends that his left hip condition is related to his service-connected back condition. 

A May 2023 VA treatment note documented the Veteran's reports that he was told he had a hip length discrepancy that was contributing to his back pain. During a review of systems, the examiner noted that the Veteran had a normal gait. The Veteran had a normal stride, tandem, heel, and toe intact. 

A June 2023 VA treatment note documented that the Veteran was seen for gait training treatment. The Veteran was receiving treatment after having left ankle surgery. The Veteran was receiving gait treatment after the issuance of a knee rollator and crutches. 

A December 2023 VA treatment note documented that the Veteran was seen for a follow up visit after a recent left total ankle arthroplasty. The examiner noted that the Veteran had a normal gait in regular shoes without an assistive device.

In December 2023, the Veteran submitted a hip conditions DBQ. The Veteran was diagnosed with left hip strain. Dr. NR, an osteopath, indicated that the complete claims folder via VBMS was reviewed by the agent. The examiner indicated that the Veteran's left hip pain was related to service-connected left knee condition. The examiner indicated that the Veteran walked with an altered gait and was overcompensated due to the left knee condition. The examiner stated that the Veteran's altered gait had caused added pressure on the left hip. This resulted in ongoing strain in the left hip muscles. 

The Board finds the December 2023 private opinion inadequate for adjudication purposes. The examiner indicated that the Veteran walked with an altered gait and was overcompensated due to the left knee condition. However, VA treatment records documented that the Veteran had a normal gait; the Veteran only had an altered gait after a recent left ankle surgery. The Board notes that the Veteran was seen in December 2023 at the VAMC for a follow-up after his left ankle surgery.
 Veteran walked with an altered gait and was overcompensated due to the left knee condition. The examiner stated that the Veteran's altered gait had caused added pressure on the left hip. This resulted in ongoing strain in the left hip muscles. 

The Board finds the December 2023 private opinion inadequate for adjudication purposes. The examiner indicated that the Veteran walked with an altered gait and was overcompensated due to the left knee condition. However, VA treatment records documented that the Veteran had a normal gait; the Veteran only had an altered gait after a recent left ankle surgery. The Board notes that the Veteran was seen in December 2023 at the VAMC for a follow-up after his left ankle surgery. The VA examiner stated that the Veteran had a normal gait. However, just a days after his VA follow up appointment, Dr. NR's evaluation indicated that the Veteran had an altered gait. These findings are inconsistent with the Veteran's treatment records and reports during treatment. The Board finds that the DBQ findings are inconsistent with the VA treatment records. Additionally, Dr. NR did not provide an opinion discussing any potentially relevant records, medical studies, or an explanation for her opinion. Lastly, Dr. NR indicated that the complete claims folder via VBMS was reviewed by the agent. There is no clear evidence that the provider reviewed the Veteran's medical history, or any treatment records in rendering the opinion, or instead relied on the report of such from the Veteran's agent. An example of such is the provider not addressing the Veteran's treatment records that suggest that the Veteran has a normal gait throughout treatment. 

The Veteran asserted his belief in a connection, while a lay person is competent to testify about his observable symptoms, or to report what a doctor has told him, only a medical professional is competent to provide a diagnosis and etiology. As a lay person lacking the necessary training and knowledge to do so, the Veteran is not competent to render an opinion as to the etiology of the claimed conditions. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

There is no objective medical evidence linking a left hip condition to the Veteran's service-connected conditions. There is no adequate opinion of record relating the Veteran's left hip pain to a service-connected condition. The private examiner's findings and rationale are inconsistent with the record. Also, the examiner did not discuss any potentially relevant records or medical studies. 

Again, it is noted that results expected from a VA examination are not available due to the cancellation and failure to assist with scheduling by the Veteran, and he has not submitted any additional evidence under the evidence submission lane of his appeal.  Accordingly, service connection for left hip pain is not warranted.

LLE Radiculopathy 

The Veteran contends that his LLE radiculopathy is related to his service-connected back condition. 

During the July 2014 VA back condition examination, the Veteran was diagnosed with RLE radiculopathy. The examiner indicated that the Veteran's LLE was not affected. 

A May 2023 VA treatment record documented the Veteran's reports of lower back pain that radiated to both hips then down the outside/center of both thighs stopping at his knees. The Veteran reported that on rare occasions he had tingling in his thighs. The Veteran admitted to lower extremity weakness at times while walking and his legs may give way.

A May 2023 VA treatment note documented that the Veteran was diagnosed with lumbar radiculopathy. 

A December 2023 VA treatment note documented that the Veteran had lower back pain with some radiation pain down the legs/sciatica pain.

In December 2023, the Veteran submitted a back conditions DBQ. Dr. NR indicated that the complete claims folder via VBMS was reviewed by the agent. Dr. NR indicated that the Veteran had an altered gait due to muscle spasms. The examiner also indicated that the Veteran had urinary frequency problems due to his back condition. The Veteran was diagnosed with left lumbar radiculopathy. The examiner did not discuss RLE radiculopathy. The examiner indicated that the Veteran's LLE radiculopathy was related to his service-connected back condition. The examiner explained that as the nerves that supply the lower extremities exit the spinal canal, they become irritated or damaged. When this happened, the person could experience leg numbness/tingling and pain.  Dr. NR also opined that the LLE radiculopathy was related to the service-connected RLE radiculopathy. Dr. NR did not provide a rationale for her opinion. Dr. NR provided a summary of the Veteran's symptoms and how the Veteran treated his symptoms. 

The Board finds the December 2023 private opinion inadequate for adjudication purposes. Dr. NR indicated that the Veteran had an altered gait during her evaluation. However, treatment
LE radiculopathy was related to his service-connected back condition. The examiner explained that as the nerves that supply the lower extremities exit the spinal canal, they become irritated or damaged. When this happened, the person could experience leg numbness/tingling and pain.  Dr. NR also opined that the LLE radiculopathy was related to the service-connected RLE radiculopathy. Dr. NR did not provide a rationale for her opinion. Dr. NR provided a summary of the Veteran's symptoms and how the Veteran treated his symptoms. 

The Board finds the December 2023 private opinion inadequate for adjudication purposes. Dr. NR indicated that the Veteran had an altered gait during her evaluation. However, treatment records just days prior to her evaluation demonstrated that the Veteran had a normal gait. Also, Dr. NR indicated that the Veteran had urinary frequency problems. These findings are inconsistent with the Veteran's treatment records and reports during treatment. The Board finds that the DBQ findings are inconsistent with the VA treatment records. Additionally, Dr. NR did not provide an opinion discussing any potentially relevant records, medical studies, or an explanation for her opinion. Lastly, Dr. NR indicated that the complete claims folder via VBMS was reviewed by the agent. There is no clear evidence that the provider reviewed the Veteran's medical history, or any treatment records in rendering the opinion, or instead relied on the report of such from the Veteran's agent. An example of such is the provider not addressing the Veteran's treatment records that suggest that the Veteran has a normal gait throughout treatment.

A February 2024 VA treatment record documented that the Veteran continued to have intermittent pain in his low back and sciatica pain. The Veteran had lower back pain that radiated down both legs. The Board finds that this evidence demonstrates that the Veteran's left lower extremity is secondary to his service-connected back condition. Service connection for left lower extremity radiculopathy is warranted. 38 C.F.R. § 3.310.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter, 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.