Citation Nr: 21030504 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 06-38 343 DATE: May 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder on the basis of aggravation by a service-connected cognitive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1952 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. This case has a long and complex procedural history, with multiple prior actions by the Board and the United States Court of Appeals for Veterans Claims (Court). Most recently, the Board promulgated a decision in November 2019 that denied service connection for an acquired psychiatric disorder, to include depression, unspecified, and anxiety, to include as secondary to a service-connected cognitive disorder. The Veteran appealed the Board's November 2019 decision to the Court. In August 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating that portion of the Board's decision that denied service connection for an acquired psychiatric disorder based on whether the condition was aggravated beyond its natural progression by the service-connected cognitive disorder, and remanding that matter for readjudication. The parties to the JMR expressly noted that the Veteran did not challenge the Board's denial of direct service connection for an acquired psychiatric condition or the Board's determination that an acquired psychiatric disorder was not caused by the service-connected cognitive disorder, and to that extent the appeal should be dismissed. Entitlement to service connection for an acquired psychiatric disorder on the basis of aggravation by a service-connected cognitive disorder is remanded. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disabilityany additional impairment of earning capacityin nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence." Id. at 239. In this case, in the JMR filed with the Court, the parties to the appeal agreed that the Board failed to ensure that a June 2019 medical opinion substantially complied with the instructions in a July 2018 remand order regarding an opinion on the matter of aggravation. More specifically, the parties agreed that the examiner's opinion was conclusory, noting only that the Veteran's anxiety symptoms were controlled by medication, and failed to provide the supporting data and reasoned medical explanation necessary to support the examiner's conclusion on the matter. The parties agreed that, on remand, the Board should obtain a medical examination or opinion that substantially complies with the July 2018 remand directive and adequately addresses the matter of aggravation. Pursuant to the terms of the JMR, additional development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (the Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any acquired psychiatric disorder found to be present since August 2005 (when the underlying claim for service connection was filed), to include depression, unspecified, and anxiety, has been aggravated (i.e., worsened beyond its natural progression) by the Veteran's service-connected cognitive disorder. A complete rationale for any opinion(s) expressed must be provided and should reflect consideration of the Court's holding in Ward, to the effect that the worsening need not be permanent. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.