Citation Nr: 1512205 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-12 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a mood disorder, to include as secondary to service-connected degenerative joint disease (DJD) with lumbar stenosis and radiculopathy of the right lower extremity. ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1972 to October 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim for service connection for a mood disorder secondary to service-connected degenerative joint disease with lumbar stenosis. The Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the Veteran's claim. The Board has considered these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that he has a mood disorder as result of his service-connected back disability. In October 2010, the Veteran submitted a June 2010 letter from his treating therapist, L.G. The therapist noted the Veteran had a back injury in service and back pain that became worse over time, culminating in back surgery in 2008 that did not alleviate all the pain. The therapist diagnosed him as having a mood disorder secondary to degenerative disc disease (DDD) and radiculopathy of the right lower extremity. The therapist noted that as a result of his service-connected DDD that the Veteran suffered a number of depressive symptoms including depressed mood during most of the day, nearly every day. The therapist noted the Veteran was sad and discouraged and no longer could play sports or do chores. The therapist also stated that the Veteran was irritable, experienced mood swings, and his frustration tolerance was low. The Veteran reported feeling lethargic and isolating himself; as well as difficulty starting tasks and problems with distraction, memory, and decision making. This diagnosis was reiterated in letters from the therapist in April 2011 and December 2012. In May 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed mood disorder. The examiner noted that the Veteran was seen by the above therapist 2-3 times per year. The Veteran noted he was married to his fourth wife for the past 12 years and that he had a few friends and usually stayed home, but was active in church. He stated he used to love to hunt and fish but could not anymore because he could not walk or stand because of pain. He stated he slept three to four hours per night and back pain woke him up. He endorsed a depressed mood, saying he felt down three to four hours per day on most days. He denied anhedonia, changes in appetite, weight loss, anergia, psychomotor agitation or retardation, and suicidal ideation. Overall, the VA examiner opined that the Veteran had no current diagnosis of a mood disorder, because while the Veteran endorsed persistently depressed mood and some difficulty with concentration attributed to pain, he denied other significant symptoms of depression including anhedonia, appetite discordance, psychomotor agitation, anergia, worthlessness, or suicidal ideation. The examiner further noted that while the Veteran endorsed insomnia, his sleep complaints appeared caused by pain and not mood disturbance. First, as there appear to be outstanding treatment records from the Veteran's therapist, L.G., as it was noted that the Veteran was being treated since June 2010. These records should be obtained upon remand, as well as any other outstanding private or VA medical center (VAMC) records related to treatment of his claimed mood disorder. After a review of the record, given the discrepancy between the evidence, a remand is required for an additional VA examination to determine whether the Veteran has a current diagnosis of a mood disorder and if so whether it is caused or aggravated by his service-connected back disability. On remand, the examiner must reconcile the medical evidence of record, including the opinions from the Veteran's therapist, L.G., and the May 2011 VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran provide or authorize the release of any relevant outstanding non-VA records. With appropriate authorization from the Veteran, obtain and associate with the claims file all outstanding private medical records pertaining to the Veteran's mood disorder, specifically to include the Veteran's treatment records from L.G., MA, LPA from June 2010 onwards. 2. Associate updated relevant VAMC treatment records with the claims file. 3. After the above is completed, afford the Veteran an appropriate VA examination conducted by a psychiatrist, to determine whether he has had a mood disorder at any point during the appeal period. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran has had a mood disorder at any point during the appeal period. The examiner must reconcile the medical evidence of record. This includes: a. The June 2010 opinion by L.G., MA, LPA; and b. The May 2011 VA examination. If the examiner finds that the Veteran has a current diagnosis of a mood disorder, the examiner must provide also an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any mood disorder was either (1) caused by or (2) is aggravated by the Veteran's service-connected DJD with stenosis and neuropathy. If the examiner determines that any mood disorder is aggravated by the Veteran's DJD with stenosis or neuropathy, the examiner should report the baseline level of severity of the mood disorder prior to the onset of aggravation. If some of the increase in severity of the mood disorder is due to the natural progress of the disorder, the examiner should indicate the degree of such increase in severity due to the natural progression of the mood disorder. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The examiner must include a thorough rationale for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).