Citation Nr: 0814370 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-41 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for depression, to include as secondary to service-connected right hip disability and low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from July 1979 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for depression, to include as secondary to service-connected right hip disability and low back disability. The veteran testified before the Board in March 2008. In April 2008, the Board granted the veteran's motion to have her case advanced on the Board's docket. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is seeking entitlement to service connection for depression as secondary to her service-connected right hip disability and low back disability. A disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that the regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310(b), was amended in September 2006. See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the United States Court of Appeals for Veterans Claims (Court), specifically Allen. The veteran was afforded a VA psychiatric medical examination in May 2007. The examiner provided a diagnosis of depressive disorder, not otherwise specified. She opined that it was less likely as not that the veteran's depression was caused by her right hip bursitis or degenerative arthritis of the spine. The examiner did not address the question of whether the veteran's service-connected right hip disability and low back disability aggravated her depression. Thus the examination was not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Because a VA examiner has not specifically opined as to whether the veteran's service-connected right hip disability and low back disability aggravated her nonservice-connected depression, the Board finds that an examination and opinion addressing this issue is necessary to fairly decide the merits of the veteran's claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for a VA examination to determine whether there is any relationship between her diagnosed depression and her service- connected right hip disability and low back disability. The examiner should provide an opinion and specifically state whether it is at least as likely as not that any psychiatric disability, to specifically include depression, is caused by her service-connected right hip and/or low back disabilities. The examiner must also state whether it is at least as likely as not that any psychiatric disability found to be present, to specifically include depression, was aggravated by the service-connected right hip and/or low back disabilities. If necessary, the examiner should attempt to reconcile the opinion with the medical opinions of record. The rationale for all opinions expressed must be provided. The claims folder should be made available to the examiner for review in conjunction with the examination and the examination report should note that review. 2. Then, readjudicate the claim for service connection for depression, to include as secondary to service-connected right hip and low back disabilities. If the decision remains adverse to the veteran, issue a supplemental statement of the case and allow the appropriate opportunity for response. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).