Citation Nr: A20009237 Decision Date: 05/22/20 Archive Date: 05/22/20 DOCKET NO. 191105-43544 DATE: May 22, 2020 REMANDED Entitlement to service connection for depression is remanded. Entitlement to service connection for lumbar degenerative disc disease status post-multilevel lumbar laminectomy and fusion with hardware is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1984 to April 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from decisions issued by a Department of Veterans Affairs (VA) Regional Office in July 2012, January 2014, and May 2014. The appeal was previously before the Board in March 2018, at which time it was remanded for further development. On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), was signed into law. In November 2019, the Veteran opted into the AMA within 60 days of receiving an October 2019 Supplemental Statement of the Case. He requested direct review by a Veterans Law Judge. 1. Entitlement to service connection for depression is remanded. The Veteran contends that he has developed depression secondary to his service-connected disabilities, as well as due to obesity. In March 2018, the Board remanded the matter for an opinion addressing secondary service connection. The Veteran was afforded a VA examination with opinion in September 2019. The examiner found at that time that the Veteran did not meet the DSM-5 criteria for a diagnosis of any mental disorder and, therefore, she did not provide an opinion regarding etiology. Unfortunately, the Board must find this examination inadequate. If a disability existed at any point during the appeal period, or in close proximity to the claim for service connection, it will be considered a current disability even if it has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Thus, although the Veteran’s depression appears to have resolved, he nevertheless has had a diagnosis of the condition during a portion of the appeal. See May 2014 VA Examination. Therefore, the claim must be remanded for an opinion regarding the etiology of the Veteran’s depression during that period. In addition, the Board finds that the Veteran’s theory of secondary service connection, due to obesity, must be addressed. 2. Entitlement to service connection for a back disorder is remanded. The Veteran contends that his lumbar degenerative disc disease status post-multilevel lumbar laminectomy and fusion with hardware (hereinafter, “back disorder”) developed secondary to obesity which was caused by his left ankle and other service-connected disabilities. The Board observes that obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155, 156 (2018). However, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis. 38 C.F.R. § 3.310; see also Walsh v. Wilkie, No. 18-0495 (U.S. Vet. App. February 24, 2020). An opinion was obtained in May 2014 addressing service connection for the Veteran’s back disability, due to the left ankle. However, the opinion does not address a theory of service connection based on obesity as an intermediary step. Accordingly, remand is necessary for an opinion addressing whether obesity, as an intermediary step for secondary service connection, was caused or aggravated by a service-connected disability. 3. Entitlement to TDIU is remanded. The Veteran claims that he has been unable to work due to his service-connected disabilities. The record reflects that he has been in receipt of a combined 100 percent disability rating since February 25, 2019. However, the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot as of that date. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) Regardless, the Board finds that the Veteran’s TDIU claim is inextricably intertwined with the claims being remanded herein. Accordingly, it will defer decision on the matter of TDIU. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Return the claims file to the examiner who performed the VA examination in September 2019, addressing the Veteran's claim for service connection for depression. If the examiner is unavailable, provide the file to another suitably qualified examiner. The need for additional examination is at his or her discretion. The examiner should then address the following, with the understanding that the questions pertain to any diagnosis of depression present during the appeal period, even if the condition has resolved: a) whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s depression had its onset in service or is otherwise medically related to an in-service injury or disease. b) whether it is at least as likely as not that the Veteran’s depression was caused by any service-connected disability, and/or any weight gain caused by his service-connected disabilities. c) If not, address whether is it at least as likely as not that the Veteran’s depression was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s service-connected disabilities and/or any weight-gain caused by his service-connected disabilities. If the Veteran’s depression was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of his back disability. The examiner is asked to address the following: a) whether it is at least as likely as not that the Veteran’s back disability was caused by any service-connected disability, to include but not limited to his left ankle disability, and/or any weight gain caused by his service-connected disabilities. b) If not, address whether is it at least as likely as not that the Veteran’s back disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran’s service-connected disabilities and/or any weight-gain caused by his service-connected disabilities. If the Veteran’s back disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.