Citation Nr: 1306146 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-22 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for major depressive disorder, to include as secondary to service-connected low back syndrome. 2. Entitlement to service connection for urinary incontinence, to include as secondary to service-connected low back syndrome. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected low back syndrome. INTRODUCTION The Veteran had active service from February 1983 to February 1987. This matter comes before the Board of Veteran's Appeals (Board) on appeal from December 2008 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issues of entitlement to service connection for erectile dysfunction and urinary incontinence are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has been shown to currently have major depressive disorder that is related to his service-connected low back syndrome. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, major depressive disorder is proximately due to or the result of his service-connected low back syndrome. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Nevertheless, in the decision below, the Board has granted the Veteran's claim for major depressive disorder. Therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Service Connection for Major Depressive Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). In the present case, the Veteran is seeking service connection for major depressive disorder. He does not contend, and the evidence does not show, that the claimed disability began during service. Rather, he claims that his major depressive disorder is secondary to his service-connected back disability. The claims file contains VA treatment records dated between September 2008 and May 2010, which reflect that the Veteran has been diagnosed with recurrent major depressive disorder secondary to a medical condition, which was identified as chronic pain due to his back disability. He was hospitalized on multiple occasions for suicidal behavior, which was attributed to his back pain. VA outpatient treatment records dated through May 2010 reflect that he was seen regularly for treatment of depression, and the diagnosis of depression secondary to a medical condition was repeatedly confirmed. He was noted to be taking at least two prescription medications for depression. The claims file also contains a private treatment noted dated in April 2009 in which the clinician stated that the Veteran has "a severe mental illness," including symptoms of suicidal ideation related to his service-connected disability. The Veteran was afforded a VA mental health examination in March 2009 during which the examiner diagnosed him with depressive disorder not otherwise specified. She opined that the condition is not related to the Veteran's back disability because it did not begin during service or within one year of separation, but rather began many years after service and his back injury. This opinion was reiterated in July 2009 and May 2010 without any additional evidence or rationale. The VA opinion provided is inadequate because it fails to acknowledge that service connection is not precluded for a secondary disability simply because it first manifests several years after service. In this case the treatment records indicate that the Veteran's back disability has become significantly more painful since its initial onset. Moreover, the VA examiner's opinion fails to consider whether the Veteran's claimed depressive disorder may have been aggravated by his service-connected back disorder. Accordingly, the Board affords this opinion little weight. Based on the foregoing, it cannot be said that a preponderance of the evidence is against the Veteran's claim. The only evidence weighing against the claim is the VA examiner's opinion, which has minimal probative value. On the other hand, multiple VA treatment records are favorable, as they suggest that his major depressive disorder is related to his service-connected low back syndrome. Therefore, the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current major depressive disorder was caused or aggravated by a service-connected disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board also observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current major depressive disorder was caused or aggravated by his service-connected low back syndrome. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for major depressive disorder is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for major depressive disorder is granted. REMAND With regard to the claims for service connection for erectile dysfunction and urinary incontinency, further development is required. The Veteran has claimed that these disorders related to his service-connected back disability. In connection with his claim, he was afforded a VA genitourinary examination in November 2008. In rendering the diagnoses of erectile dysfunction and urinary (urgency) incontinence, the examiner described both conditions as secondary to "L5-S1 herniated nucleous [sic] pulposus." However, he ultimately concluded that neither condition was caused by the spine disability because the nerves of the genitalia and the urinary bladder do not come from L5-S1 spinal segments. The Veteran was also afforded a VA examination of his spine in June 2009 during which the examiner noted a history of urinary incontinence, frequency, and urgency, as well as erectile dysfunction. To the question, "Is etiology of these symptoms unrelated to the claimed disability?" the examiner answered, "No." The examiner diagnosed the Veteran with low back strain, degenerative disc disease at L3-4 and L4-5, and a herniated disc at L5-S1. He did not provide a separate diagnosis for any other condition. The VA examiner's opinions appear contradictory and incomplete and lack sufficient rationale for VA to make a decision on the claims. Moreover, neither VA examiner considered whether the claimed disabilities may have been aggravated by the Veteran's back disorder or whether they may be caused or aggravated by any of the various medications prescribed for his service-connected back disorder and depression. Therefore, in order to afford the Veteran every consideration, the Board finds that another medical opinion is necessary. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any urinary incontinency and erectile dysfunction that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The Veteran has contended that he has urinary incontinency and erectile dysfunction that are secondary to his service-connected low back syndrome. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has urinary incontinency and erectile dysfunction that manifested in service or that or causally or etiologically related to his military service. He or she should also state whether it is at least as likely as not that the Veteran has urinary incontinency and erectile dysfunction that were caused by or permanently aggravated by the Veteran's service-connected low back syndrome and major depressive disorder. In rendering this opinion, the examiner should address whether the Veteran's medication for his back and psychiatric disabilities may have caused or aggravated his urinary incontinency and erectile dysfunction. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After completing this action, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraph. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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. 2010). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs