Citation Nr: 1632274 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 11-23 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for major depressive disorder (also claimed as posttraumatic stress disorder (PTSD)). 2. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Wounded Warrior Project WITNESSES AT HEARING ON APPEAL Appellant and several members of his family ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from August 1997 to February 1998, from July 1999 to April 2000, and from June 2004 to July 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his spouse, his mother and father, and his mother-in-law testified before a Decision Review Officer (DRO) at the RO in March 2011. A transcript is of record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Subsequent to the most recent supplemental statement of the case (SSOC) in September 2015, relevant medical records were added to the record, including additional VA examinations and medical records obtained from SSA supporting the award of SSA disability benefits. The Veteran by an October 2015 submission expressly informed that he does not waive any rights pertaining to his case. Hence, the case must be remanded for RO review of newly obtained pertinent evidence and issuance of an SSOC prior to the Board's adjudication of the claims. 38 C.F.R. §§ 19.37, 20.1304 (2015). A VA examiner in February 2016 addressing other claims noted that the Veteran suffered from depression, and observed that pain increased the likelihood of depression. However, the examiner stated that a further opinion regarding causal relationship between the Veteran's pain and his depression would be speculative "based on current knowledge." Because this February 2016 examination effectively raises the issue of service connection for depression as secondary to pain, secondary service connection must be further developed. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Send the Veteran a notice letter pursuant to the Veterans Claims Assistance Act (VCAA) that addresses a claim for secondary service connection for depression. 3. Schedule the Veteran for a mental disorders examination to obtain an opinion as to whether the Veteran's claimed depression is secondary to service connected disabilities. All indicated tests should be conducted and the results reported. Following examination of the Veteran and review of the claims file, the examiner must render an opinion as to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed major depressive disorder is caused by his service-connected disabilities (chronic headaches, right rotator cuff strain, residuals of T-11 compression fracture with degenerative changes, right lower extremity radiculopathy, and tinnitus). Please explain why or why not. (b) If not caused by the service-connected disabilities, is it at least as likely as not that the Veteran's diagnosed major depressive disorder is permanently worsened beyond normal progression by his service-connected disabilities (versus temporary exacerbations of symptoms). Please explain why or why not. If the depressive disorder is found to have been permanently worsened beyond normal progression, the examiner should indicate, to the extent possible, the degree of worsening attributable to service-connected disabilities beyond the baseline level of severity of the psychiatric disorder. A complete rationale for all opinions must be provided. 4. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, the AOJ must readjudicate the issue on appeal. If the benefits sought remain denied, the AOJ must provide the Veteran and his representative with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence or 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). _________________________________________________ K. A. BANFIELD 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) (2015).