Citation Nr: 1815191 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 09-36 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability (other than posttraumatic stress disorder (PTSD)), to include as secondary to service-connected Hepatitis C. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to a service-connected disability since May 11, 2007. REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1978 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the February 2010 VA rating decision, the RO also denied the issue of service connection for PTSD. Pursuant to the Veteran's appeal, the Board has recharacterized the Veteran's claim more broadly to an acquired psychiatric disability (other than PTSD) in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In March 2012, the Board, in part, denied a higher rating for service-connected Hepatitis C and determined that new and material evidence had been received to reopen the previously denied claim of service connection for depression. In March 2012, September 2013, August 2014, March 2017, and December 2017, the Board remanded the issues of service connection for an acquired psychiatric disability (other than PTSD) and a TDIU. The case has been returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND An additional VA medical opinion is needed for the issue of entitlement to service connection for an acquired psychiatric disability (other than PTSD), to include as secondary to service-connected Hepatitis C. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted in a January 2006 VA Form 21-4138, the Veteran contends having symptoms of depression during and since separation from service from having venereal warts while in service, as documented in his service treatment records. During the course of the appeal, he also contends that his acquired psychiatric disability (other than PTSD) is secondary to his service-connected Hepatitis C. Following review of the claims file and clinical evaluation of the Veteran in January 2010, November 2012, and August 2016, VA examiners rendered the following psychiatric disabilities: cannabis dependence, cannabis use disorder, dysthymic disorder, and depressive disorder not otherwise specified (NOS). VA medical opinions have been provided for cannabis use on direct and secondary basis in January 2010, August 2016, and January 2018, for depressive disorder NOS on a secondary basis for causation and aggravation in November 2012, and for dysthymic disorder on a secondary basis for causation in January 2010. Nevertheless, the Board finds that medical opinions addressing depressive disorder NOS on a direct basis and dysthymic disorder on a direct basis and secondary basis for aggravation have not been provided in this case. See 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). Next, while the Board remands the case for the RO to obtain an additional VA medical opinion and to readjudicate the claim for service connection for an acquired psychiatric disability (other than PTSD), that decision may impact this claim for a TDIU. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the August 2016 VA examination for mental disorders (other than PTSD) and provided the July 2017 and January 2018 VA medical opinions so supplemental opinions may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnoses of dysthymic disorder and depressive disorder NOS (even if they have since resolved) began during active service or is related to an incident of service, to include consideration of the Veteran's assertions of having symptoms of depression during and since separation from service as noted in the January 2006 VA Form 21-4138. b) Whether it is at least as likely as not that the Veteran's diagnosis of dysthymic disorder was aggravated beyond its natural progression by his service-connected Hepatitis C. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, the RO should review the medical opinions to ensure that the requested information was provided. If any opinion is deficient in any manner, the RO must implement corrective procedures. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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) (2017).