Citation Nr: 1337429 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 03-29 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for depression, to include as secondary to service-connected hypertension. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2003, the Veteran testified before a Decision Review Officer at the RO. In December 2006, the Veteran testified at a Travel Board Hearing. The Board recognizes that this hearing transcript has numerous inaudible portions. In an August 2007 written brief presentation, the Veteran's representative at that time acknowledged that many of the remarks made at the hearing were inaudible. However, the Veteran indicated that he did not wish to have another hearing. In October 2007 the Board remanded the claim for additional development. The claim appears to have been taken off of regular appeals track when it was mis-coded as awarded. The mistake was corrected in 2011 and the matter returned to the appeals path for development. In April 2013, the Board again remanded the claim for medical opinions regarding the possibility that depression was aggravated by service or a service-connected disorder. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. 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 Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Veteran claims that service connection for depression is warranted secondary to his service-connected hypertension. Specifically, he has alleged that his depression is secondary to various medications he takes to manage his hypertension. In this regard, in an October 2002 VA treatment record, it was noted that the Veteran's blood pressure medication had to be adjusted again. The Veteran reported that it was a real struggle to manage his blood pressure and to "avoid becoming depressed by the difficulty, the risk involved in his hypertension and the effect of his medications." The examiner remarked that at this point, the Veteran's hypertension appeared to be a much more significant source of depression than any post-substance abuse reaction. A subsequent October 2002 VA treatment record reflects that the Veteran reported feeling discouraged that his blood pressure fluctuates and that he continued to have side effects of coughing and headaches from medication. The claim was remanded in October 2007 and April 2013 for VA examinations and opinions. In the October 2007 remand, the Board noted that it was unclear that a June 2002 VA examiner had reviewed the claims folder in opining that the Veteran's depression was not caused by hypertension. The October 2007 Board remand instructed the VA examiner to opine whether the Veteran's depression was caused by his (1) service, (2) service-connected hypertension or (3) medications prescribed for his service-connected hypertension. The examination took place in June 2011. In the April 2013 remand, the Board found that the VA examiner in June 2011 failed to follow the prior remand orders by not adequately addressing the Veteran's claim under a theory of direct service connection or secondary service connection. In pertinent part, the examiner recorded a diagnosis of major depressive disorder and determined that the disorder was not aggravated by service. However, in providing a rationale for the opinion, the examiner simply noted that the Veteran indicated that his depression started prior to his military service. The opinion rendered by the examiner was based entirely on the Veteran's belief that his depression symptoms began prior to service without any further elaboration by the examiner. The examiner also determined that the Veteran's depressive disorder was not aggravated by his service-connected hypertension. No rationale was provided and no reference was made as to any specific clinical findings as to why the Veteran's major depressive disorder is not aggravated by his hypertension. Moreover, the examiner did not address whether the Veteran's depression was caused or worsened by medications prescribed for his hypertension. In April 2013, the Board remanded the claim for further VA examination. The record reflects that in June 2013, the Veteran underwent further VA examinations and opinions by two different examiners. A VA psychologist continued to opine that the Veteran's depression began prior to service and in providing a rationale, referenced the previous examination report in which the Veteran indicated a history of depression prior to service. The examiner opined that the Veteran's depression was not a result of his hypertension since the depression existed prior to military service and the examiner did not know of any body of research that indicated a physiological causal relationship between hypertension and depression. The examiner also opined that the depressive disorder was not aggravated by the Veteran's hypertension as there is no significant available evidence to suggest that the hypertension in and of itself has exacerbated the Veteran's depression beyond its natural course. The Board finds that this examination report is inadequate as the examiner primarily referenced the Veteran's previously recorded belief that his depression began prior to service in rendering a negative direct service connection opinion and cited to general research in rendering negative secondary service connection opinions. A separate June 2013 VA examination was conducted by a VA physician who concluded that the Veteran's depression was not caused or worsened by medications prescribed for his hypertension. In providing a rationale, the examiner stated that Metroprolol can contribute to depression in some individuals but this Veteran was seen for depression prior to taking Metroprolol and there was no evidence to suggest that his depressive disorder has been aggravated by use of Metroprolol. The examiner also felt that the Veteran's other antihypertensive medications do not cause depression. The Board finds that this examination report is also inadequate. In this case, the Veteran is not only alleging that any one hypertension medication is directly causing his depression, but rather that the aggregate effect of taking several medications and various side effects (headaches, coughing, etc.) in order to control his hypertension is adding to his depression. This contention is supported somewhat in the October 2002 VA treatment records cited to above. On remand, the examiner should provide more detailed rationale as to matters discussed above, and provide an opinion as to the likelihood that the aggregate effect of medications and symptoms from hypertension has caused a permanent increase in severity in his depression. In light of these deficiencies, the Board finds that this matter must be returned to the June 2013 VA examiners, or other qualified VA medical providers, for compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran's entire claims file, to include a copy of this REMAND, should be made available to the June 2013 VA psychologist for review and clarification of the opinions expressed therein. The examiner should offer an opinion on the following: Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's depression was incurred in or aggravated by his military service? Is it at least as likely as not (50 percent or greater likelihood) that hypertension caused or aggravated the Veteran's depression? [To be "aggravated by" service or service-connected hypertension, it must be found that the period of service or the service-connected hypertension caused a permanent increase in the underlying severity of the depression disability that is beyond natural progression.] The examiner should provide a thorough and detailed discussion of pertinent medical and lay evidence to support all opinions rendered, and not merely recite a timeline provided by the Veteran. In particular, the examiner is requested to discuss the significance of the Veteran's contentions in the cited October 2002 VA treatment records. If the original examiner is unavailable, then the requested opinion should be obtained from another appropriately qualified clinician. If a new examination is deemed necessary, then one should be conducted. 2. The Veteran's entire claims file, to include a copy of this REMAND, should be made available to the June 2013 VA physician for review and clarification of the opinion expressed therein. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the aggregate effect of symptoms and medications the Veteran takes for his service-connected hypertension caused or aggravated his depression. By "aggravation", the Board, once again, means a permanent increase in the underlying severity of the depression disability that is beyond natural progression. The examiner should provide a thorough and detailed discussion of pertinent medical and lay evidence to support all opinions rendered. In particular, the examiner is requested to discuss the significance of the Veteran's contentions in the cited October 2002 VA treatment records. If the original examiner is unavailable, then the requested opinion should be obtained from another appropriately qualified clinician. If a new examination is deemed necessary, then one should be conducted. 3. After completion of the foregoing, the RO/AMC should readjudicate the claim. If the benefit sought remains denied, the Veteran must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).