Citation Nr: 21015534 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-07 429 DATE: March 17, 2021 REMANDED Entitlement to service connection for an acquired mental disorder, to include unspecified depressive disorder, is remanded. Entitlement to service connection for type II diabetes mellitus (DM2) as due to hypertension (HTN) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is remanded. Entitlement to SMC based on housebound pursuant to 38 U.S.C. § 1114(s) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for an acquired mental disorder, to include unspecified depressive disorder, is remanded. In a December 2019 Board decision, see 12/05/2019 BVA Decision, the claim of service connection for an acquired mental disorder was denied. The Veteran subsequently appealed it to the Court of Appeals for Veterans Claims (Court). In October 2020, while the appeal was pending, the Veteran, through counsel, and the Secretary, VA, entered into a Joint Motion for Remand (JMR) and partial vacation of the December 2019 Board decision. See 10/23/2020 CAVC Decision, P. 2-6. In an Order also dated in October 2020, the Court vacated the December 2019 Board decision in part, and remanded the case to the Board for further review consistent with the JMR. Id. P. 7. At the time of the December 2019 Board decision, HTN was not service connected, but the issue was on remand. A 2017 examination report reflects that a VA examiner opined that it was not at least as likely as not that the Veteran’s acquired mental disorder causally related to his active service. See 07/13/2017 C&P Exam, 7th Entry, P. 2. The consensus of the parties in the JMR was that the examiner did not address a notation in the depression examination report that the Veteran’s “hypertension (stroke)” and two other currently nonservice-connected disorders exacerbated the Veteran’s depression and anxiety. See 07/13/2017 C&P Exam, 1st Entry, P. 2. Hence, a remand was required so a medical examiner can address it. The Board notes that the issue of service connection for cerebral vascular accident (stroke) as due to HTN is under development at the Agency of Original Jurisdiction (AOJ). 2. Entitlement to service connection for DM2 as due to HTN is remanded. The Board remanded this issue in December 2019 for an examination, which the AOJ arranged as directed. A VA medical examiner opined that it was not at least as likely as not that the Veteran’s DM2 is due to or worsened by his HTN. See 07/08/2020 C&P Exam, 5th Entry. In his response to the SSOC, the Veteran’s attorney referenced a number of medical studies and treatises that note an association of HTN causing DM2. The attorney also referenced the Veteran’s obesity, which has not been addressed as an intermediary step between it and his DM2. See 10/13/2020 Third Party Correspondence. 3. Entitlement to SMC based on aid and attendance pursuant to 38 U.S.C. § 1114(l) is remanded. 4. Entitlement to SMC based on housebound pursuant to 38 U.S.C. § 1114(s) is remanded. These issues are intertwined with the issues discussed above. The matters are REMANDED for the following action: 1. The AOJ shall send the claim file to an appropriate clinician and ask for an opinion on whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s depressive disorder is due to his HTN. If the clinician opines in the negative, then is it at least as likely as not that the Veteran’s HTN worsens the depressive disorder? Inform the clinician that any worsening need not be chronic or permanent, but that any impairment in earning capacity caused by flare-ups of the depressive disorder due to the HTN would be sufficient for a positive nexus opinion. The clinician must provide a full explanation for any opinion provided. Additionally, if aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation The Board takes note of the fact that the AOJ is still developing service connection for stroke residuals as due to HTN. Should a medical examiner return a positive nexus opinion, include the stroke residuals as a potential causative or aggravating of the depressive disorder. 2. Send the claims file to the clinician who conducted the July 2020 DM2 examination and provided the nexus opinion. Please direct the clinician’s attention to the Veteran’s attorney’s October 2020 letter and the medical studies and literature cited therein. Ask the clinician to provide an addendum wherein he addresses whether those studies change his prior negative nexus opinion on whether the Veteran’s DM2 is due to or worsened by his HTN and a full explanation of why or why not. 3. If the clinician adheres to his negative nexus opinion, then ask the clinician to further address the impact, if any, of the Veteran’s obesity as follows: (a) Whether it is at least as likely as not that any of the Veteran’s service-connected disorders, to include any medications prescribed as treatment, caused the Veteran to become obese/gain weight; (b) If so, whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing his DM2; and, (c) Whether it is at least as likely as not that DM2 would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. If the answer to (c) is negative, then is it at least as likely as not that obesity worsens the DM2? Advise the clinician that any worsening need not be permanent; instead, an impairment in earning capacity due to temporary flare-ups of DM2 caused by a service-connected disability is sufficient. See Ward v. Wilkie, 31 Vet. App. 233 (2019). If so, in terms of a percentage, please provide a baseline of aggravation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.