Citation Nr: 21030515 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-46 879 DATE: May 19, 2021 REMANDED Entitlement to service connection for depression, as secondary to service-connected hepatitis C, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to December 1981 and from March 1982 to April 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a February 2019 Board Decision, the above-referenced claim, as well as claims of entitlement to service connection for hepatitis C and cirrhosis of the liver as secondary to hepatitis C, were remanded to the RO for further evidentiary development and readjudication. The RO completed the development and granted service connection for both hepatitis C and cirrhosis of the liver. However, as explained below, the RO did not undertake sufficient development of the depression claim after those claims were granted. Therefore, the depression claim must be remanded again. The Veteran is now service-connected for hepatitis C, but the record does not contain an adequate opinion addressing the Veteran's contention that his depression is secondary to his hepatitis C. The VA examiner opined that the Veteran's depression is less likely than not proximately due to or the result of the Veteran's hepatitis C, but did not address whether the Veteran's depression was aggravated by his hepatitis C. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (holding that an opinion obtained regarding secondary service connection must address both causation and aggravation of the nonservice-connected condition); 38 C.F.R. § 3.310. An adequate opinion is necessary to decide the claim. See Allen, 7 Vet. App. at 448-49; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In addition, the Board finds it would be helpful to obtain another opinion addressing both the causation and aggravation elements of the claim. The June 2020 VA examiner's opinion is ambiguous whether her opinion applies to the entire time on appeal or is instead limited to the Veteran's depression at the time of the VA examination (and shortly before). This is because she did not discuss or acknowledge private treatment records that made an explicit link between the Veteran's depression in 2007 and his general medication condition (specifically including his hepatitis C and treatment therefore). See, e.g., July 2007 Private Psychiatry Note ("Dep[ression secondary] to GMC [(general medical condition)] (Hep C)."); October 2007 Private Psychiatry Note (same); February 2007 Private Psychiatry Note (same). The Board finds that these treatment notes are not sufficient, particularly in light of the 2020 VA examiner's opinion, to establish a causal link between the Veteran's depression from December 2013 (when he filed his claim) until the present. VA treatment records also suggest that the Veteran's medical condition contributed to his depression prior to the appeal period. See, e.g., October 2011 VA Mental Health Note ("Pt... states his depression started around 2002 when he was first dx with hep C, has gone through three trial treatment, is cirrhosis now and Plt is still low...Problem: hx of ADHD and depression, marriage discord, and hep C"). However, the Veteran's private treating physician stopped diagnosing depression (secondary to his general medical condition or otherwise) after January 2008 (with the next note indicating "liver better" where the depression diagnosis used to be). Thereafter, the Veteran's mental health diagnoses in the private psychiatrist's records included one or both of attention-deficit hyperactivity disorder (ADHD) and/or obsessive-compulsive disorder (OCD), but not depression, until June 2011 where the psychiatrist noted ("some component of depression"), then not again until December 2013 (simply noting "mood 'less than'"), with an actual diagnosis in December 2014 in a note indicating: "Psych sxms: Stressful situation at work."). Thereafter, there are diagnoses of depression that at least suggest that his hepatitis C, cirrhosis, and/or treatments therefore may cause or aggravate the condition. See, e.g., April 2015 Private Psychiatry Note ("Psych sxms: depression. Low e. Poor int/mot., anhedonia, nihilism; There are no new psychiatric complaints."; "Starts new hep C tx."; "Assessment: Moderate medical sxms (hep C pending). Psych moderate low mood/focus", diagnosing ADHD, OCD, and depression); December 2015 Private Psychiatry Note ("Psych sxms: Mood better, focus baseline, sleep ok; int/mot good; more E with hep C; pain minimal after hip [replacement surgery and rehabilitation]; very pleased and more active now"; continuing diagnosis of depression). The Board highlights these records because they are not sufficient to grant the claim. While it is clear that in 2007 he had depression secondary to hepatitis C (as well as treatment for hepatitis C and the complications of the condition), his medical condition and psychiatric condition seemed to improve until his private psychiatrist was no longer diagnosing depression. When, in December 2014, the private psychiatrist again diagnosed depression, he noted "stressful situation at work" rather than the Veteran's general medical condition or hepatitis C, specifically. Thereafter, there is not a definite link between the hepatitis C (and/or cirrhosis) and the Veteran's depression, but there is the possibility of an association that is not adequately addressed by the 2020 VA examiner. An opinion that engages with these facts would help the Board resolve the Veteran's claim. In any case, the available opinions are inadequate. Remand to obtain an adequate opinion is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2020 to the Present. 2. Obtain an addendum opinion from an appropriate clinician regarding: a. whether the Veteran's depression is at least as likely as not proximately due to service-connected disability (including hepatitis C, cirrhosis of the liver, and treatment for those conditions) or, b. whether the Veteran's depression, at least as likely as not, has been aggravated beyond its natural progression by service-connected disability (including hepatitis C, cirrhosis of the liver, and treatment for those conditions). The opinion must address both causation and aggravation theories. In answering these questions, the VA examiner should note that the appeal period begins in December 2013 and continues to the present, so the opinion should address the depression diagnosed during this entire period. In other words, even if his current depressive symptoms are related to other causes, as the VA examiner opined in 2020, the relevant question is whether any depression shown at any time during the appeal period was related to or aggravated by the hepatitis C. If such causation or aggravation only pertained to a specific time period, then the examiner can make that clear in the opinion. In addition, it would be helpful to the Board if the examiner commented on the private psychiatrist's diagnoses prior to the appeal period of depression secondary to the Veteran's general medical condition (particularly including hepatitis C) (see 2007 progress notes) and also commented on any other private or VA treatment records that the VA examiner deems relevant to the requested opinions. The examiner is referred to the discussion above in this Remand. The examiner should provide a complete rationale for any opinions offered. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.