Citation Nr: 18152797 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-53 112 DATE: November 27, 2018 ORDER Entitlement to service connection for major depressive disorder with anxious distress features as secondary to a service-connected back disorder is granted. REMANDED Entitlement to a rating in excess of 40 percent for a back disorder is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial compensable rating for a back scar is remanded. Entitlement to an effective date prior to September 19, 2014, for the grant of service connection for a back scar is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDING OF FACT The Veteran’s major depressive disorder with anxious distress features is aggravated beyond its natural progression by the Veteran’s service-connected back disorder. CONCLUSION OF LAW The criteria for service connection for major depressive disorder with anxious distress features as secondary to service-connected back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1996 to February 2001. A hearing was not requested. 1. Entitlement to service connection for major depressive disorder with anxious distress features as secondary to service-connected back disorder The evidence of record supports entitlement to service connection for major depressive disorder with anxious distress features as secondary to service-connected back disorder. Service connection is not available on a direct basis because neither the Veteran nor his representative have submitted evidence of an in-service stressor. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). However, service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). The first element is satisfied. An August 2018 VA DBQ submitted by a private physician contains a current diagnosis of major depressive disorder with anxious distress features. The nexus element is also satisfied. The May 2018 private medical opinion notes several symptoms associated with the Veteran’s back disorder, including pain, the inability “to stand or walk for long periods,” and “limited mobility with use of wheelchair.” The examiner also fully describes the Veteran’s current mental health symptoms, including how these mental health symptoms are impacted by the Veteran’s musculoskeletal symptoms. Based on the totality of the Veteran’s symptoms, the examiner concludes, in part, that the Veteran’s “mental health condition is more likely than not permanently aggravated by his service connected [back disorder].” This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). Therefore, giving every benefit of the doubt to the Veteran, the Board finds that the Veteran is entitled to service connection for major depressive disorder with anxious distress features as secondary to a service-connected back disorder on the basis of this opinion. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for a back disorder is remanded. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea is remanded. 3. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. 4. Entitlement to an initial compensable rating for a back scar is remanded. 5. Entitlement to an effective date prior to September 19, 2014, for the grant of service connection for a back scar is remanded. 6. Entitlement to a total disability rating due to individual unemployability is remanded. The July 2015 VA back examination and exhibits submitted by the Veteran’s representative indicate that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). There are no documented efforts to obtain these records. The Veteran’s records from SSA should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (holding that the duty to assist requires obtaining Social Security records of which the Board has notice). As these records may impact the disposition of the Veteran’s remaining claims, a remand is required. In addition, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A July 2015 VA back examination and a May 2018 private medical opinion, both submitted during the pendency of the claims described above, indicate that the Veteran is unable to work. In light of Rice and this evidence, the Board will infer a claim for TDIU. Additionally, on remand the RO should obtain all relevant VA treatment records dated from October 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. If no records are available, the claims folder must indicate this fact. 2. Obtain all VA treatment records from October 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel