Citation Nr: 1756765 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-18 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for depression, to include as secondary to the service-connected right and left foot disabilities. REPRESENTATION Appellant represented by: Michigan Veterans Affairs Agency ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to November 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer in February 2010 and a transcript of the hearing is of record. The Board previously remanded the case in September 2015 and August 2017 for opinions as to the etiology of the Veteran's depression on a direct basis and if the Veteran's service-connected right and left foot disabilities caused or aggravated the Veteran's depression. Unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran underwent a VA mental health examination in May 2009. The May 2009 examiner opined that the Veteran's depression is not caused by service-connected right and left foot disabilities, but the examiner did not provide a rationale for this opinion, did not provide an opinion in regard to whether the right and left foot disabilities aggravated the depression; furthermore, the examiner did not address the Veteran's statements that his depression started during active duty after his father's death and that his statement that his depression began in 2001 after difficulties with his wife was a misunderstanding. After finding the May 2009 VA examination was inadequate, the Board remanded this issue case in September 2015 for further development regarding the etiology of the Veteran's depression because. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). After remand, an examiner in June 2016 opined that the Veteran's depression was not incurred in or caused by an in-service injury, event or illness, but again did not address the Veteran's report of depression following the death of his father during the Veteran's active duty service; furthermore, the examiner did not address the issues of service connection for depression secondary to the feet disabilities or aggravation therefrom. As such, in August 2017, the Board issued another remand for a medical opinion. A VA examination in October 2017 also considered the etiology of the Veteran's depression, but when discussing secondary service connection and aggravation, simply quoted from a July 2010 examination regarding the Veteran's feet disabilities, opining that the functions of both feet "were not additionally limited...and do not prevent the Veteran from his daily routine activities and sedentary jobs" without addressing the issues of service connection for depression secondary to the feet disabilities or aggravation. The examination also failed to consider the Veteran's statements that his depression began in service after the death of his father. As explained above, the Board finds that the examinations of record regarding the Veteran's depression are inadequate as they did not substantially comply with the Board's prior remand directives. As such, further development is warranted. See Barr, 21 Vet. App. at 310; Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and obtain any private medical treatment for his depression and furnish appropriate authorization for the release of the medical records. Furthermore, obtain any outstanding VA treatment records. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After associating any records with the claims file, schedule the Veteran for a VA psychiatric examination to determine the etiology of his depression. The electronic claims file should be made available to, and be reviewed by, the VA mental health examiner to become familiar with the pertinent medical history. The examiner must consider and address the Veteran's lay statements as to when his depression started, specifically including the Veteran's statements regarding the death of his father. A comprehensive rationale is to be provided for any opinion. The examiner is requested to provide the following opinions: a) Is it as likely as not (i.e. probability of 50 percent or more) that the depression had its onset during active service or is otherwise related to service? b) Is it as likely as not (i.e. probability of 50 percent or more) that the service-connected right and left foot disabilities caused the depression? c) Is it as likely as not (i.e. probability of 50 percent or more) that the service-connected right and left foot disabilities aggravated the depression? If it is the examiner's opinion that that there is aggravation, the examiner should identify the baseline level of severity of the depression prior to onset of worsening, or by the earliest medical evidence created at any time between onset of worsening and receipt of medical evidence establishing the current level of severity. 3. After completion of the above and compliance with the requested actions has been ensured, readjudicate the claim on appeal on the basis of the additional evidence of record. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).