Citation Nr: 1322723 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-38 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for major depressive disorder (MDD), claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to April 1990 and from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. 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 The Board finds that additional development is needed before a decision is rendered in this matter. The Board notes that at his April 2013 Board hearing, the Veteran testified that his service-connected shoulder and back disabilities were preventing him from developing a relationship with his grandchild and, as a result, he had developed depression. Additionally, at his Board hearing he provided evidence that he had been diagnosed with depression and prescribed medication by Dr. T.P., his long time private physician. Dr. T.P. also opined that the Veteran's depression was caused by, or related to, his service-connected shoulder and back disabilities; however, he did not provide an explanation or rationale for this opinion. The Board notes that, in McLendon v. Nicholson, 20 Vet. App. 79 (2006); the Court held that VA must provide a medical examination in connection with a service connection claim when the record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability, but (D) does not contain sufficient evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). See McLendon, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Based on the evidence submitted at his Board hearing which establishes that the Veteran has a current diagnosis of depression, as well as the indication that such diagnosis is related to his service-connected disabilities, and the Veteran's testimony that his service-connected disabilities have caused his depression, the Board finds that the requirements of McLendon are met. Therefore, a VA examination and opinion are needed to determine whether the Veteran's current depression is related to his active service, to include his service-connected disabilities. Additionally, the Board notes that at his April 2013 Board hearing, the Veteran indicated he had sought mental health treatment from his private physician in 2012 and then went to the Fort Collins, Colorado VAMC. These treatment notes are not currently of record and efforts must be made to associate them with the claims file before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to obtain any outstanding, pertinent medical records, to include (a) records from Dr. T.P., the Veteran's private physician, for treatment during and since 2012; and (b) records located at the Fort Collins VAMC for treatment during and since 2012. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records. 2. Then, after obtaining as much of the above evidence as is available, the Veteran should be afforded a new VA examination by a medical professional with sufficient expertise to determine the nature and etiology of the Veteran's current psychological disability. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims file the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's depression was caused or chronically worsened by his service-connected disabilities. The complete rationale for all opinions expressed must be provided. 3. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is 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 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). _________________________________________________ MICHELLE L. KANE 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).