Citation Nr: 21023075 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-06 062 DATE: April 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to July 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Most recently, in December 2020, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran’s claim (as reflected in a January 2021 supplemental statement of the case (SSOC)). Unfortunately, the Veteran’s claim must be remanded again. In the December 2020 remand, the AOJ was directed to obtain VA medical opinion regarding whether the Veteran had any acquired psychiatric disorders and if they were related to his service-connected disabilities. Pursuant to the remand directives, VA medical opinion was obtained in January 2021. The examiner opined that the Veteran “did not appear to meet criteria for a DSM-5 Mental Disorder at present.” While the examiner explained why a current diagnosis under DSM-V is not warranted, she failed to explain how the prior diagnosed conditions of depressive disorder (diagnosed in a February 2012 VA examination) and anxiety (diagnosed in a December 2015 VA treatment note) resolved or no longer show any pathology. Instead, she appeared to focus on the absence of any current aquired psychiatric condition (“[h]owever, current presentation/manifestion [sic] includes no mental health treatment and no current psychotropic medication use.”). Moreover, even if the Veteran’s prior diagnoses, to include depressive disorder and/or anxiety, resolved, such diagnoses were during the pendency of the claim and are thus considered current diagnoses. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim). In this regard, the examiner did not adequately address causation and/or aggravation of the previously diagnosed disabilities during the pendency of the claim. To the extent the examiner found that that any aggravation of his psychiatric condition(s) since 2012 was only transient (“[w]hile the experience of chronic pain may have at times throughout the years from 2012 to present contributed to some degree to transient negative mood symptoms, there is insufficient evidence to show aggravation beyond natural progression”), the Board notes that any level of aggravation is sufficient. Notably, aggravation of a non-service-connected disability does not require a permanent worsening of the disability. Rather, aggravation constitutes any incremental increase in disability attributable to a service-connected disability (i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence). Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The Board therefore finds that substantial compliance with the December 2020 remand directives has not been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board finds that a remand is warranted for new VA medical opinion as to the nature and etiology of the Veteran’s acquired psychiatric disorder, to include whether his previously diagnosed depressive disorder and/or anxiety disabilities were proximately due to or aggravated by his service-connected conditions. The matter is REMANDED for the following action: 1. Obtain VA medical opinion regarding the nature and etiology of any acquired psychiatric disorder, to include depression, anxiety, or any psychiatric condition manifesting in chronic sleep impairment. The examiner must answer all of the following, considering and discussing the Veteran’s February 2012 statement that he felt depressed due to the limitations created by his service-connected shoulder and back disabilities as well as the Veteran’s prior diagnosed conditions, to include depressive disorder (diagnosed at a February 2012 VA examination) and/or anxiety (diagnosed in a December 11, 2015 VA treatment note): (a) Does the Veteran at least as likely as not presently have a diagnosed acquired psychiatric disorder? Consider and discuss whether the Veteran’s chronic sleep impairment, or his prior diagnosed conditions can be associated with a diagnosed psychiatric condition. (b)(i) Is any presently diagnosed psychiatric condition at least as likely as not proximately due to the Veteran’s service-connected disabilities, to include his thoracolumbar spine and/or the combined chronic pain of his service-connected disabilities? (b)(ii) Is any presently diagnosed psychiatric condition at least as likely as not aggravated (worsened beyond the natural cause of the condition) by the Veteran’s service-connected disabilities, to include his thoracolumbar spine disability and/or the combined chronic pain of his service-connected disabilities? (c)(i) If the Veteran’s chronic sleep impairment is not associated with any currently diagnosed psychiatric disability, opine whether the chronic sleep impairment symptom is proximately due to the Veteran’s service-connected disabilities, to include his thoracolumbar spine disability and/or the combined chronic pain of his service-connected disabilities? (c)(ii) If the Veteran’s chronic sleep impairment is not associated with any currently diagnosed psychiatric disability, opine whether the chronic sleep impairment symptom is aggravated (worsened beyond the natural cause of the condition) by the Veteran’s service-connected disabilities, to include his thoracolumbar spine disability and/or the combined chronic pain of his service-connected disabilities? (d)(i) If the Veteran has no presently diagnosed psychiatric disorder, opine whether the Veteran’s prior diagnosed conditions, to include depressive disorder and/or anxiety, were at least as likely as not proximately due the Veteran’s service-connected disabilities, to include his thoracolumbar spine disability and/or the combined chronic pain of his service-connected disabilities? (d)(ii) If the Veteran has no presently diagnosed psychiatric disorder, opine whether the Veteran’s prior diagnosed conditions, to include depressive disorder and/or anxiety, were at least as likely as not aggravated (worsened beyond the natural cause of the condition) by the Veteran’s service-connected disabilities, to include his thoracolumbar spine disability and/or the combined chronic pain of his service-connected disabilities? (e) If aggravation is found in any of the above opinions, provide, to the extent possible, an opinion as to the baseline condition of the disability prior to aggravation by the Veteran’s other service-connected conditions. When considering the above, the examiner should note that aggravation does not require a permanent worsening of the psychiatric disabilities. Rather, aggravation in this context is any incremental increase in disability attributable to service-connected disability. 2. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. (Continued on the next page)   If the claim remains denied, the Veteran should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate Counsel 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.