Citation Nr: 18157202 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-63 135 DATE: December 12, 2018 ORDER Entitlement to service connection for depression as secondary to service-connected diabetes mellitus, type II, and its associated complications, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, depression has been permanently aggravated by the Veteran’s service-connected diabetes mellitus, type II, and its associated complications. CONCLUSION OF LAW The criteria for service connection for depression, as secondary to the service-connected diabetes mellitus, type II, and its associated complications, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to April 1972, to include service in the Republic of Vietnam. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing has been associated with the record. The record was held open for 30 days until August 13, 2017 so that the Veteran could submit additional evidence. In July 2017, the Veteran submitted an additional medical opinion. At the Board hearing, the Veteran was represented by the Colorado Division of Veterans Affairs. However, it appears that the Veteran subsequently moved and in January 2018, the Veteran submitted a new VA Form 21-22 appointing Iowa Department of Veterans Affair as his representative. Although the Veteran’s new representative has not had an opportunity to submit evidence or argument with respect to this appeal, in light of the award of service connection herein, representing a full grant of the benefit sought on appeal, the Board finds no prejudice to the Veteran in the issuance of this decision. Additional evidence, including VA examinations and VA medical records have been associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ). However, the VA examinations do not address the disability on appeal and the VA records are duplicative and/or redundant of prior records. As such, waiver of AOJ consideration is not necessary. Entitlement to service connection for depression The Veteran has asserted that his depression is secondary to his service-connected diabetes mellitus, type II, and associated complications. Specifically, at the Board hearing, he asserted that this depression, which was diagnosed approximately in 1994, was aggravated beyond its natural progression by his diabetes, which was diagnosed in 2002. Importantly, the Veteran and his spouse described his increasing psychiatric symptoms since his diabetes diagnosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). VA clinical records show that the Veteran has a current diagnosis of depression. Initially, the Board notes that the Veteran does not allege, nor does the record reflect, that his depression is directly related to service. Moreover, there is simply no competent medical evidence showing that the Veteran’s service-connected diabetes mellitus caused his depression. The only opinion to address direct causation is the November 2014 VA examination, which found that it was less likely than not that depression is related to diabetes and peripheral neuropathy condition. The examiner rationalized that the Veteran’s depression was related to his nonservice-connected multiple sclerosis and that the Veteran’s peripheral neuropathy was not described as functionally impairing that it affects his mood. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Significantly, at the Board hearing, the Veteran himself testified that the onset of his depression was many years prior to his diagnosis of diabetes mellitus and his symptoms had increased since his diagnosis. As such, the Board must find that the Veteran’s depression is not caused by his diabetes. See 38 C.F.R. § 3.310. Nevertheless, the November 2014 VA examiner did not clearly address whether the Veteran’s depression was permanently aggravated beyond its natural progression by his diabetes mellitus. Importantly, in June 2014, May 2015 and July 2017 opinions, the Veteran’s VA staff psychiatrist indicated that the Veteran’s depression was permanently aggravated by his diabetes mellitus. In July 2017, the examiner rationalized that the Veteran’s worries over his diabetic illness and increased limitations caused by his diabetes and associated neuropathy has aggravated his depression. The examiner continued that the Veteran’s lifestyle changes associated with diabetes and dietary changes have stressed him and added to his depressive illness. In proffering this opinion, he considered the Veteran’s medical history, which he would be personally aware of as a result of providing care to the Veteran since 2007. Additionally, the physician provided an etiological opinion, complete with rationale. Thus, the June 2014, May 2015 and July 2017 opinions have more probative value on the question of aggravation. Therefore, the Board finds that, when resolving the benefit of the doubt in favor of the Veteran, service connection for depression, is warranted as secondary on the basis of aggravation by his service-connected diabetes mellitus, type II, and associated complications. 38 C.F.R. § 3.310; Allen, supra. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   As a final matter, the Board notes that, although 38 C.F.R. §3.310(b) indicates that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the AOJ’s determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. §3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the AOJ having the responsibility for determining the degree of aggravation in assigning the rating. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats