Citation Nr: 0918837 Decision Date: 05/20/09 Archive Date: 05/26/09 DOCKET NO. 06-13 425 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Service connection for major depressive disorder (MDD) (formerly considered as mood disorder), to include as secondary to service-connected tinnitus. 2. Entitlement to a total rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Katie Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision in which the RO, in pertinent part, denied, service connection for mood disorder as secondary to the service-connected disability of severe sensorineural hearing loss, left ear and profound mixed hearing loss, right ear and tinnitus, and entitlement to individual unemployability. The Veteran perfected appeals to the mood disorder and individual unemployabiltity claims. Therefore, the only issues on appeal are the ones listed on the title page. As a final preliminary matter, the Board notes that a letter from the Veteran's representative and a statement from the Veteran's private psychiatrist were received by the Board on January 23, 2007. The Veteran, through his representative, has waived consideration of this evidence by the RO. See 38 C.F.R. § 20.800 (2008). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran developed a psychiatric disability, diagnosed as chronic MDD, secondary to his service-connected tinnitus. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for MDD as secondary to a service-connected disability are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008). Given the favorable disposition of the claim, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a),(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). III. Analysis A VA examination report from June 2005 shows that the Veteran reported that his tinnitus over the years had been getting louder, especially within the last year. The Veteran also reported hearing music in both ears when there was no music playing. He stated that the songs were recognizable pieces of music. The Veteran reported that these symptoms of hearing music along with the tinnitus had been going on for the past two years. He reported a depressed mood. The Veteran stated that his tinnitus bothers and aggravates him. The Veteran's wife reported that the Veteran no longer was able to drive because his mood had changed and now he angered easily and got road rage. She also reported that the Veteran appeared to be very stressed and that he had tried antidepressants without much success. A February 2006 Providence VA Medical Center (VAMC) progress note shows that the Veteran was found to have no history of psychiatric care but a high level of anxiety and depression secondary to 53 years of tinnitus and 3 years of constant music in his head. At a March 2006 VA neurology consult the Veteran reported having markedly decreased hearing and loud ringing in his ears, which he had for about 53 years and related it to prolonged exposure to loud artillery noise. He stated that in addition to that he started hearing music and songs over the last three years and it bothers him and makes him depressed. Objectively, the Veteran appeared to be sad and unhappy. He was otherwise appropriate. He was assessed as having long-standing neuro-sensory hearing loss and auditory hallucinations in the presence of severely impaired hearing. An April 2006 VA progress note from the Providence VAMC reflects that the Veteran complained of increasing depression and irritability since auditory hallucinations of songs replaying in his head. A computed tomography (CT) was performed and was within normal limits, but a magnetic resonance imaging (MRI) was unable to be performed due to the Veteran's anxiety. The physician noted that the Veteran's cardiac history may be a factor in his depression/irritability. He was found to clearly meet the diagnostic criteria for MDD and was diagnosed with MDD. A June 2006 VA general mental health note shows that the Veteran reported increasing depression and irritability since auditory hallucinations of songs replaying in his head began about 4-5 years ago. The Veteran was diagnosed with MDD. A July 2006 VA general mental health note reflects that the Veteran had no prior history of inpatient or outpatient psychiatric treatment prior to February 2006. The Veteran presented with a 50 + year history of tinnitus, due to exposure to shelling while in the military. He reported that starting four years ago he began to hear songs, such as "Happy Birthday," occurring daily. The Veteran sought treatment because the songs and tinnitus were getting worse. He had a CT scan about three years ago, which was normal. The Veteran was advised by neurology at VA to have an MRI done. He was scheduled for an MRI but was unable to complete it because of anxiety. During the initial assessment, the Veteran complained of a depressed mood most of the time for about two years. He also complained of poor sleep, decreased energy, anhedonia, increased irritability, poor concentration, thoughts of hopelessness and occasionally worthlessness. The Veteran attributed his increased depression as partly stemming from hearing loss, tinnitus, and in the past couple years, auditory hallucinations of songs such as "Happy Birthday" and "God Bless America" playing over and over and over. He also reported being depressed secondary to physical limitations imposed by medical condition and age, and described himself as a previously active person. The Veteran reported occasional passive suicidal ideation, with no intent, plan, or history of attempts. The Veteran was diagnosed with moderate MDD without psychotic features. At a July 2006 VA psychiatric examination, the Veteran was found to be cooperative and pleasant. He appeared to be reliable in his self-report. However, it was very difficult for the examiner to understand him because he spoke in very low tones and often times in a whisper. The Veteran indicated that he hears music 80-90 percent of each day for the past four years. He stated what often happens is a song will keep repeating for a half an hour. The Veteran's affect was one of depression. The VA examiner found a mood disorder with depressive features due to general medical condition and "rule out psychotic disorder, not otherwise specified." The examiner went on to say that the Veteran's depression and anxiety are more likely than not related to his medical illnesses and not service-connected due to his hearing impairment. The examiner added that it was impossible to render a definitive medical opinion as to the Veteran's auditory hallucinations without speculation. For this reason, a diagnosis of psychotic disorder, not otherwise specified was made. An August 2006 addendum reflects that the Veteran presented with a 50 + year history of tinnitus, due to exposure to shelling while in the military. The Veteran reported that starting four years ago he began to have auditory hallucinations of songs, such as "Happy Birthday", occurring daily. He sought treatment because the songs and the tinnitus were getting worse and endorsed symptoms including poor sleep, decreased energy, anhedonia, increased irritability, poor concentration, and thoughts of hopelessness. In a January 2007 letter, the Veteran's private psychiatrist stated that the Veteran suffers from recurrent depression which has developed in the context of his substantial hearing disturbance (tinnitus) which began after repeated exposure to the loud blast of howitzer fire (105 mm) during his tour of duty at Fort Dix in 1953. The psychiatrist went on to say that the Veteran's psychosocial history reveals that several years after this exposure, the Veteran began to experience dysphoric mood, which has since evolved into recurrent depression (substantial problems with restful sleep, motivation, self-esteem, energy levels, concentration, and mood instability). He reported that the Veteran is taking citalopram daily for dysphoria (sadness and depression) and quietapine at bedtime for agitation and hypnopompic hallucinations. In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The medical evidence of record reflects a current diagnosis of MDD. The Veteran is currently service-connected for tinnitus. Thus, Wallin elements (1) and (2) are satisfied. With respect to element (3), whether or not there is medical nexus evidence that establishes a connection between the two disabilities, the Board finds that the preponderance of the evidence of record demonstrates that there is a connection between the Veteran's diagnosed MDD and his service-connected tinnitus. With respect to the April 2006 VA progress note, which opined that the Veteran's cardiac history may be a factor in his depression/irritability, the Board notes that the examiner did not render any opinion as to whether the Veteran's depression was related to the Veteran's service-connected tinnitus, rather, the examiner simply stated that the Veteran's cardiac history may be a factor. For this reason the Board does not find this evidence very probative in determining whether or not there is the necessary nexus present between the present tinnitus disability and the MDD. A July 2006 VA examiner opined that the Veteran's depression and anxiety are more likely than not related to his medical illnesses and not service-connected due to his hearing impairment. However, the examiner makes no mention in his opinion of the effect of the Veteran's tinnitus on his psychiatric condition, whereas the private psychiatrist's January 2007 letter specifically identified tinnitus as a cause of the Veteran's diagnosed depression. This difference is especially important considering the fact that the Veteran has stated, "I disagree with them that my heart problems are causing my depression and anxiety. I know it is caused by my tinnitus." While the Veteran is not shown to be other than a layperson without the appropriate medical training and expertise, and is not competent to render a probative opinion on a medical matter (see, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)) (see also Routen v. Brown, 10 Vet. App. 183, 186 (1997)) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), it is important to compare specifically what the Veteran is alleging and the medical opinions rendered. For this reason, the Board finds the 2007 letter from the Veteran's private psychiatrist to be more probative, as it specifically addresses the question as to whether or not the Veteran's MDD is related to the Veteran's service-connected tinnitus. In support of the Veteran's claim, the Veteran's private psychiatrist opined that the Veteran suffers from recurrent depression which has developed in the context of his substantial hearing disturbance (tinnitus). Additionally, a February 2006 Providence VAMC progress note shows that the Veteran was found to have no history of psychiatric care but a high level of anxiety and depression secondary to 53 years of tinnitus and 3 years of constant music in his head. The Board finds that the opinions provided by the VA examiners in April 2006 and July 2006 do not preclude service connection for the Veteran's MDD. For secondary service connection, service-connected tinnitus need not be the only source of the MDD; it must only be a contributing source. Therefore, the fact that the Veteran's cardiac condition or other medical illnesses may be factors in the Veteran's MDD, does not preclude the Veteran's service-connected tinnitus from being a contributing source resulting in MDD. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the totality of the evidence, to include the Veteran and his wife's credible assertions that his tinnitus and auditory hallucinations have caused the Veteran to become depressed, the nature of the disability, and affording him the benefit of the doubt on the question of medical nexus, together with the opinion of the private psychiatrist who specifically identified tinnitus as a cause of the Veteran's diagnosed MDD, the evidence of record is at least in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for psychiatric disorder, characterized as major depressive disorder, as secondary to the Veteran's service-connected tinnitus, is warranted. 38 U.S.C.A. §§ 5107, 1154(b); 38 C.F.R. § 3.310. ORDER Service connection for major depressive disorder as secondary to service-connected tinnitus is granted. REMAND The Board finds that additional RO action on the remaining claim is warranted. The Veteran is currently rated at 50 percent for severe sensorineural hearing loss, left ear, and profound mixed hearing loss, right ear, and rated at 10 percent for tinnitus for a combined evaluation for compensation of 60 percent. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2008). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. § 4.16(a). Initially, the Board notes, even without considering the service-connected MDD, that the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16. For the purposes of § 4.16, disabilities affecting a single body system are considered one disability. Thus, the Veteran's service-connected hearing disabilities can be considered one disability for TDIU rating purposes. Because the Veteran is service-connected at 60 percent for his hearing disabilities (50 percent for severe sensorineural hearing loss, left ear, and profound mixed hearing loss, right ear, and rated at 10 percent for tinnitus), he meets the schedular criteria for a TDIU. However, the Board finds that the issue is not ripe for Board adjudication at this time as the grant of service-connection for MDD could affect the outcome of the issue of whether the Veteran's service connected disabilities render him unemployable. Additionally, the Veteran's service-connected hearing loss and tinnitus may have worsened since the last exam of April 2006 and therefore his current rating may not reflect his current disability. Under these circumstances, the Board finds that, as the above issues are inextricably intertwined with the TDIU issue, they should be considered together, and thus a decision by the Board on the Veteran's TDIU claim at this juncture would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Board opines that further findings relating to all of the Veteran's service-connected disabilities are needed to evaluate their current severity and whether they render him unemployable. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2008). Consequently, the RO should arrange for the Veteran to undergo VA examinations by an audiologist and a psychiatric examiner at the appropriate VA medical facility to evaluate all of his service-connected disabilities and for an opinion on whether they, either alone or in combination, render him unemployable. In addition, the Board notes that the Veteran receives treatment at the Providence Rhode Island VAMC and associated outpatient clinics. The most recent VA records are dated August 31, 2006. The Veteran has also had audiology assessments at the Boston Massachusetts VAMC. The most recent record associated with the claims file is dated April 10, 2006. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file all outstanding pertinent VA medical records, following the current procedures prescribed in 38 C.F.R. § 3.159 with respect to requesting records from Federal facilities. The evidence of record contains a letter from the Veteran's private psychiatrist dated in January 2007. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, in its notice letter, the RO should request that the Veteran provide authorization to enable it to obtain medical records from any private healthcare provider identified by the Veteran. The RO should also ensure that (in addition to the above), its notice meets the requirements of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) as regards to increased ratings, as appropriate. In Vazquez-Flores, the Court found that, at a minimum, adequate notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Regarding notice as required by Vazquez-Flores, the Board notes that the Veteran has been provided some of the notice required in (2) and (3) above in relation to his claim for an increased rating. However, this notice did not inform the Veteran that he should provide either lay or medical evidence of the effect that worsening of his disability has on employment and daily life or examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to readjudicating the matters on appeal. The RO's adjudication of the appeal should include consideration of all evidence added to the record since the last adjudication of the claims. Accordingly, the case is REMANDED for the following action: 1. Obtain from the Providence VAMC and associated outpatient clinics all outstanding records of evaluation and/or treatment of the Veteran, from August 31, 2006 to the present. 2. Obtain from the Boston VAMC and associated outpatient clinics all outstanding records of evaluation and/or treatment of the Veteran, from April 10, 2006 to the present. In requesting these records, the RO must follow the current procedures of 38 C.F.R. § 3.159 as regards requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to his appeal that is not currently of record. The RO should also explain the type of evidence that is his ultimate responsibility to submit to establish his TDIU claim. The RO should specifically request that the Veteran provide authorization to enable it to obtain all outstanding pertinent records from Alfred E. Darby, Jr. M.D. The RO should ensure that its letter meets the requirements of Vazquez/Flores, cited to above (as appropriate). In particular, the RO must notify the Veteran that, to substantiate his TDIU claim that he must provide, or ask VA to obtain, medical or lay evidence showing the effect that worsening or increase in severity of his hearing disabilities and MDD have on employment and daily life. In addition, the RO must provide at least general notice of all possible rating criteria under which the Veteran's hearing disabilities and MDD may be rated. The notice should also explain that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes and may also be assigned on an extraschedular basis and could be as high as 100 percent; such notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation; and that the effective date of an increase in disability will be established as of the date the evidence shows that the level of disability supports such a rating. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA audiological and psychiatric examinations, by an appropriate examiner, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician(s) designated to examine the Veteran, and the report(s) of the examination(s) should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. After examining the Veteran, the examiner should provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected bilateral hearing loss, tinnitus, and/or MDD, either alone or together, renders him unable to secure or follow a substantially gainful occupation. 5. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should so indicate. The examiner should set forth all examination findings, along with the complete rationale for the opinion provided, in a printed (typewritten) report. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. After completing the requested action, and any additional notification and development deemed warranted, readjudicate the issue of entitlement to a TDIU, on a schedular and extraschedular basis, if warranted, in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and given an appropriate opportunity to respond before the case is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs