Citation Nr: 21029054 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 703 DATE: May 12, 2021 REMANDED Entitlement to service connection for major depressive disorder, to include as secondary to diabetes mellitus and diplopia, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran died in September 2020. The appellant is his son and has been recognized as a valid substitute claimant. See Feb. 2021 Notification Letter. In November 2019, the Board denied the Veteran's claims for service connection for major depressive disorder and OSA. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR), vacating the November 2019 Board decision and remanding the matter for further development and adjudication. In the JMR, the parties agreed that remand was necessary to obtain outstanding VA treatment records and additional medical opinions as to secondary service connection. Regarding VA treatment records, the Board notes that there are multiple VA Medical Center (VAMC) reports of hospitalization in the claims file. The Veteran was hospitalized at the Lebanon VAMC in October 2018, May 2019, and June 2020. However, VA treatment records have not been uploaded to the claims file since December 2016. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) must associate all outstanding VA treatment records with the Veteran's claims file. 1. Entitlement to service connection for major depressive disorder, to include as secondary to diabetes mellitus and diplopia, is remanded. In the November 2020 JMR, the parties noted that the Board erred by not obtaining medical opinions that addressed whether the Veteran's major depressive disorder was aggravated by his service-connected diabetes mellitus or eye condition (diplopia). See CAVC Decision, pp. 3-4. Regarding aggravation by diabetes mellitus, the JMR noted that an August 2015 VA examiner only provided an opinion regarding direct causation. Id. at 4. However, the examiner also stated that "his health issues are likely a contributor to his depressed mood." Id.; Aug. 2015 C&P Examination, p. 6. The parties agreed that this statement raised the theory that the Veteran's service-connected diabetes mellitus aggravated his depressive disorder. See CAVC Decision, p. 4. Regarding aggravation by diplopia, the JMR found that the theory was raised by a November 2016 VA treatment note stating that the Veteran reported increased depression due to his vision issues. Id.; Dec. 2016 CAPRI, p. 2. Accordingly, in compliance with the directives of the JMR, the Board must remand the matter to obtain retrospective opinions regarding aggravation of the Veteran's major depressive disorder by his service-connected diabetes mellitus and diplopia. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Court remand confers on a claimant the right to compliance with the remand orders). 2. Entitlement to service connection for OSA, to include as secondary to diabetes mellitus, is remanded. In the November 2020 JMR, the parties noted that the Board erred by not obtaining a medical opinion that addressed whether the Veteran's OSA was aggravated by his service-connected diabetes mellitus. See CAVC Decision, p. 5. The parties noted that a July 2016 examiner only provided a secondary service connection opinion as to causation. Id. The parties agreed that a theory of aggravation was specifically raised by in the Veteran's September 2019 Appellate Brief. Id. Accordingly, in compliance with the directives of the JMR, the Board must remand the matter to obtain a retrospective opinion regarding aggravation of the Veteran's OSA by his service-connected diabetes mellitus. See Stegall, supra. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA Medical Records from December 2016 to the present, including but not limited to all records from Lebanon VAMC. 2. Obtain a retrospective opinion as to the nature and etiology of the Veteran's major depressive disorder and obstructive sleep apnea. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The report should include a discussion of the Veteran's documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address the following: (a.) Is it at least likely as not (a 50 percent probability or greater) that the Veteran's major depressive disorder was aggravated beyond its normal progression by his service-connected diabetes mellitus? (b.) Is it at least likely as not (a 50 percent probability or greater) that the Veteran's major depressive disorder was aggravated beyond its normal progression by his service-connected diplopia? (c.) Is it at least likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea was aggravated beyond its normal progression by his service-connected diabetes mellitus? In responding to these questions, the examiner must address the August 2015 VA examiner's note that the Veteran's health issues were likely a contributor to his depressed mood (Aug. 2015 C&P Examination, p. 6.) and the November 2016 VA treatment note stating that the Veteran reported increased depression due to his vision issues (Dec. 2016 CAPRI, p. 2). In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.