Citation Nr: 1746901 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-33 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, NOS, to include as secondary to medications taken for service-connected disabilities. 2. Entitlement to a higher initial rating for chronic gastritis and hiatal hernia with gastroesophageal reflux disorder (GERD), to include as secondary to medications taken for service-connected disabilities, currently evaluated as 10 percent disabling from February 25, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from October 1977 to May 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service Connection for Depressive Disorder The Veteran initially filed a claim for service connection for depression in February 2010. See VA Form 21-4138, Statement in Support of Claim received February 2010. In November 2010, VA received a correspondence from the Veteran requesting that his claim for entitlement to service connection for depressive disorder include as secondary to medication taken for service-connected disabilities. See VA Form 21-0820, Statement in Support of Claim received November 2010. The Veteran was provided a VA mental disorders examination in April 2011. The April 2011 VA examiner diagnosed the Veteran with depressive disorder, NOS. The VA examiner opined that the Veteran's depressive disorder is "not caused by or a result of medication taken for the service connected conditions." As rationale the April 2011 VA examiner stated that based on the medical literature "none of the medications taken for the service connected conditions have psychiatric adverse effects, neither can they cause a depressive disorder." The April 2011 VA examiner did not provide an opinion as to whether the Veteran's depressive disorder is aggravated by the medication he takes for his service-connected disabilities. Additionally, the VA examiner did not provide an opinion as to whether the Veteran's diagnosed depressive disorder, NOS was directly related to his active service. Therefore, the Board finds that the April 2011 VA examiner's opinion is inadequate for decision making purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Higher Initial Rating for Chronic Gastritis Hiatal Hernia with GERD The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to an initial disability rating in excess of 10 percent for chronic gastritis and hiatal hernia with GERD. The Veteran was last provided a VA examination relating to his chronic gastritis and hiatal hernia with GERD in April 2011, over six years ago. In the October 2017 appellant's brief, the Veteran's representative stated that the Veteran's condition has increased in severity. See Appellant's Brief received October 2017. In light of the Veteran's assertions, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Additionally, in the November 2013 substantive appeal the Veteran stated that he receives treatment for his chronic gastritis and hiatal hernia with GERD, and depressive disorder, at the VA Ponce Clinic in Ponce, Puerto Rico and the San Juan VA Medical Center in, San Juan, Puerto Rico. The most recent VA treatment records in the Veteran's claims file are from April 2011. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record. Finally, an April 2009 VA treatment record notes that the Veteran anticipates receiving Social Security Administration (SSA) benefits. VA has a duty to assist a claimant in obtaining relevant and adequately identified records. Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010). Accordingly, on remand the RO must attempt to obtain records from the SSA. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from the VA Ponce Clinic in Ponce, Puerto Rico and the San Juan VA Medical Center in San Juan, Puerto Rico, to include from April 2011. 2. Contact the SSA and request all records relating to the Veteran's claim for disability benefits. Any negative response must be included in the claims file and the Veteran notified accordingly. 3. After the above development, forward the record and a copy of this remand to the examiner who conducted the April 2011 VA mental disorders examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability, to include depressive disorder, that is etiologically related to the Veteran's active service. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability, to include depressive disorder, that is proximately due to or the result of the medication he takes for his service-connected disabilities. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability, to include depressive disorder, that is chronically aggravated by the medication he takes for his service-connected disabilities. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or the result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 4. Following the development described in the first two directives, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected chronic gastritis and hiatal hernia with GERD. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all symptomatology resulting from the Veteran's chronic gastritis and hiatal hernia with GERD. 5. After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether the benefits sought may be granted. If entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, or entitlement to a higher initial rating for chronic gastritis and hiatal hernia with GERD, remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ U. R. POWELL 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) (2016).