Citation Nr: 18149867 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-41 480 DATE: November 14, 2018 ORDER Entitlement to service connection for major depressive disorder is granted. REMANDED The issue of entitlement to service connection for a right shoulder disability is remanded. The issue of entitlement to service connection for a headache disability is remanded. The issue of entitlement to service connection for a sleep disability is remanded. The issue of entitlement to service connection for a right hip disability is remanded. The issue of entitlement to service connection for a left hip disability is remanded. The issue of entitlement to service connection for a right leg disability is remanded. The issue of entitlement to service connection for a left leg disability is remanded. FINDING OF FACT Major depressive disorder is due to service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for major depressive disorder are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Service Connection Service connection will be granted if the evidence indicates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be established on a secondary basis when a disability is proximately due to, or aggravated by, a service connected disability. 38 C.F.R. § 3.310 (2018). Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran contends that he incurred an acquired psychiatric disability as a result of service-connected lumbar spine disability. VA treatment records document a diagnosis of depression as well as the Veteran’s reports of a history of depression. A private examiner, Dr. H.G., provided a February 2015 opinion that the Veteran’s depression is at least as likely as not proximately due to his service-connected lumbar spine disability and is further aggravated by his service-connected lumbar spine disability. The opinion explained that the severe pain and limitation in function resulting from the lumbar spine disability causes and aggravates his depression symptoms. Included with the opinion were articles supporting the concept that such a proximate relationship between pain and depression may exist. The Board notes that although the VA treatment records do not include a link between the Veteran’s depression and lumbar spine disability, there is no evidence to contradict the private opinion, which is supported by a clear rationale and medical evidence. As such, service connection for major depressive disorder is warranted and the claim is granted. REASONS FOR REMAND The issues remaining on appeal are remanded for additional development. A January 2017 brief from the Veteran’s representative states that the Veteran was diagnosed with obstructive sleep apnea at the Bronx, New York, VA Medical Center (VAMC) in November 2016. As there are clearly outstanding VA treatment records, the claim must be remanded in order to obtain them. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made). In addition to the January 2017 brief, a private opinion from Dr. H.S. was submitted. The opinion is not supported by a sufficient rationale that applies to the Veteran’s specific situation – it is supported by “medical literature” in general. Nevertheless, it raises the question of whether the Veteran’s obstructive sleep apnea is etiologically related to his service-connected depression and/or the medication he takes for his service-connected lumbar spine disability. If the current diagnosis of obstructive sleep apnea is confirmed as reported by the 2017 brief, a VA etiology opinion should be obtained assessing the etiology of obstructive sleep apnea, including the 2017 private opinion. Finally, the Veteran has consistently reported, as documented in VA treatment records, that he experiences orthopedic pain, swelling, and weakness, and experiences headaches. He has indicated pain since injuring his back during service as the result of a faulty parachute landing. Given the Veteran’s reports and the medical evidence documenting such symptoms, the Board finds that he should be provided VA examination into these claims. The examination should also address whether any of the disorders are secondary to service-connected disability. The matters are REMANDED for the following action: 1. Include in the claims file any outstanding VA treatment records, the most recent of which are dated in August 2016. 2. Schedule an examination to determine the nature and etiology of any sleep disability. The examiner must review the claims file and provide an opinion as to whether the obstructive sleep apnea is at least as likely as not (i.e., probability of 50 percent or greater) (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. The examiner must specifically consider the 2017 private opinion from Dr. H.S. which relates sleep apnea to depression and lumbar spine disability, to include medication use to treat back pain. 3. Schedule an examination to determine the nature and etiology of any right shoulder, hip, or lower extremity disability. The examiner must opine whether any right shoulder, hip, or leg disability is at least as likely as not (i.e., probability of 50 percent or greater) related to an in-service injury, event, or disease, including the bad parachute landing that is etiologically related to the lumbar spine disability. The examiner must also provide an opinion as to whether right shoulder, hip, or leg disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 4. Schedule an examination to determine the nature and etiology of any headache disability. The examiner must opine whether any headache disability is at least as likely as not (i.e., probability of 50 percent or greater) related to an in-service injury, event, or disease. (Continued on the next page)   The examiner must also provide an opinion as to whether headache disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability (e.g., major depressive disorder). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.B., Counsel