Citation Nr: 1320963 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 05-20 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for major depressive disorder, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In February 2007, the Board issued a decision which denied the Veteran's claim for service connection for a generalized anxiety disorder and major depressive disorder (MDD), to include as secondary to service-connected GERD. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a March 2008 Order, the Court granted a March 2008 Joint Motion for Remand, vacating the Board's February 2007 decision and remanding the Veteran's claim for additional development and consideration by the Board. In December 2008, the Board remanded this claim for additional development pursuant to the March 2008 Court Order and Joint Motion for Remand. In a March 2010 rating decision, the RO granted the Veteran's claim for service connection for generalized anxiety disorder, to include as secondary to service-connected GERD, thereby constituting a full grant of the benefits sought on appeal regarding the Veteran's anxiety disorder. In February 2012, the Board denied the claim of service connection for MDD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By an August 2012 Order, the Court granted an August 2012 Joint Motion for Remand, vacating the Board's February 2012 decision and remanding the Veteran's claim for additional development and consideration by the Board. The issue of total disability based upon individual unemployability due to service connected disabilities has been raised by the Veteran's Attorney and thus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted, the Court in August 2012 remanded the claim for service connection for MDD. Evidence in the file indicates that the Veteran's service-connected anxiety disorder has been treated with paxipam, diazepam, and clonazepam since at least 1983. In November 2011, the Veteran's attorney furnished medical literature indicating that his anxiety medications, which are part of a group of drugs called benzodiazepines, are known to cause or aggravate depression. The Veteran's attorney argues that it was at least as likely as not that the Veteran's depression has been caused or aggravated by the benzodiazepines prescribed to treat his anxiety disorder VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Secondary service connection may also be warranted for disability proximately due to or the result of a service connected disorder and where aggravation of a nonservice connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Thus, the record raises the question whether the Veteran's MDD is caused or aggravated by the Veteran's use of benzodiazepines. Pursuant to McLendon, the Court order and Joint Motion for Remand directed that Veteran be provided a VA examination or medical opinion to determine whether the Veteran's use of prescribed benzodiazepines caused or aggravated his MDD. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with a VA mental health examination to ascertain the nature and etiology of major depressive disorder. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine: a. whether it is at least as likely as not (probability of 50 percent), that the Veteran's major depressive disorder is caused by the Veteran's use of prescribed benzodiazepines (paxipam, diazepam, and clonazepam), considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. b. If the answer to the foregoing question is negative, the examiner is asked to determine whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's major depressive disorder has been aggravated by the Veteran's use of prescribed benzodiazepines (paxipam, diazepam, and clonazepam), considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. If feasible, the examiner should determine what symptoms and/or level of severity of symptoms of MDD are attributable solely due to Veteran's use of prescribed benzodiazepines (paxipam, diazepam, and clonazepam). The examiner is also asked to comment on the literature submitted by the Veteran's attorney. 2. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 3. After the foregoing development is completed, adjudicate the claim of service connection for major depressive disorder. If the benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case, and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ L. M. BARNARD 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) (2012).