Citation Nr: 22014333
Decision Date: 03/12/22	Archive Date: 03/12/22

DOCKET NO. 17-02 975
DATE: March 12, 2022

ORDER

Entitlement to service connection for diverticulosis is granted secondary to service-connected unspecified depressive disorder.

FINDING OF FACT

The probative evidence weighs in favor of finding that the Veteran's diverticulosis was at least as likely as not secondary (temporarily aggravated by) his service-connected medication for unspecified depressive disorder.

CONCLUSION OF LAW

The criteria for entitlement to service connection for diverticulosis have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had qualifying service from January 1972 to December 1975. 

In a February 2018 Decision, the Board remanded the issue herein.  

In July 2019, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge.  

In May 2021 and November 2021 Decisions, the Board remanded the issue herein.

1. Entitlement to service connection for diverticulosis 

Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability.  38 C.F.R. § 3.310(a).  On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability).  

The Veteran generally contends that his diverticulosis was caused or aggravated by service and/or secondary to his service-connected conditions.  See July 2019 Board Hearing transcript.  Upon the most recent remand, the Agency of Original Jurisdiction (AOJ) obtained a pertinent VA examination in November 2021 and the examiner rendered an unfavorable opinion regarding direct and secondary service connection.  However, the Board finds that opinion to be inadequate because the examiner: (a) based the direct opinion on lack of in-service complaints, treatment, and diagnosis; and (b) did not discuss whether the diverticulosis was permanently or temporarily aggravated by the service-connected conditions.  Nevertheless, the Board finds that additional remand is unnecessary because other medical evidence of record indicates that the Veteran's diverticulosis was at least as likely as not secondary (temporarily aggravated by) his service-connected unspecified depressive disorder.  

Specifically, VA and private treatment records document that the Veteran was prescribed Paxil for his unspecified depressive disorder; these records also indicate that the Paxil temporarily worsened his diverticulosis stomach symptoms.  See November 2006 private treatment record obtained by the Social Security Administration (indicated increased stomach symptoms since starting Paxil); September 2007 Oklahoma City VAMC record (continued prescription of Paxil for depression); June 2020 Codesheet (service-connected conditions include unspecified depressive disorder).  As noted above, the holding in Ward allows for secondary service connection on the basis of temporary aggravation; thus, despite Paxil being eventually discontinued as depression treatment, the temporary aggravation of diverticulosis by a service-connected medication is sufficient to grant the claim.  Ward, supra.

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Daus, 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.