Citation Nr: 0802864 Decision Date: 01/25/08 Archive Date: 02/04/08 DOCKET NO. 06-00 124A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for adjustment disorder with anxiety and depression, secondary to service-connected bilateral hearing loss and tinnitus disabilities. REPRESENTATION Appellant represented by: Richard J. Mahlin ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from April 1951 until December 1953. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Lincoln, Nebraska. FINDING OF FACT The veteran's adjustment disorder with anxiety and depression has been shown by competent clinical evidence to be causally related to the veteran's service-connected disabilities. CONCLUSION OF LAW Chronic adjustment disorder with anxiety and depression is proximately due to service-connected disabilities. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records and reports of private post-service examinations. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder. The Board, after careful review of the veteran's statements, service records, and medical records, has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The Board also notes that any possible deficiencies regarding VA's duty to assist are not prejudicial to the veteran because his claim for service connection for adjustment disorder with anxiety and depression, as secondary to service-connected bilateral hearing loss and tinnitus disabilities, is granted herein. Legal Criteria and Analysis Service connection will be granted if the veteran shows he has a disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre- existing injury or disease in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for a disability that is proximately due to or the result of a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a) (2007). Also, 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 progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2007). 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 caused or aggravated by a service- connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran maintains that his adjustment disorder with anxiety and depression is secondary to his service-connected bilateral hearing loss and tinnitus disabilities. See June 2005 Statement in Support of Claim. In this case, in order to establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board initially recognizes that competent clinical evidence verifies the existence of service-connected bilateral hearing loss and tinnitus disabilities. A claim for service connection for bilateral hearing loss and tinnitus was filed by the veteran in March 2004. In July 2004, the veteran was granted service connection by the RO for bilateral hearing loss, with an evaluation of 50 percent, and for tinnitus, rated as 10 percent disabling. The record also contains medical evidence of a diagnosis of adjustment disorder with anxiety and depression. Following examination of the veteran in June 2005, private psychologists diagnosed the veteran with adjustment disorder with anxiety and depression under Axis I. See June 2005 Psychological Evaluation. The same psychologists also reaffirmed the diagnosis in letters submitted in October 2005 and January 2006 to VA. See October 2005 and January 2006 letters. Finally, the Board finds that there exists competent evidence of record which supports that the veteran's adjustment disorder with anxiety and depression is causally related to his service-connected disabilities. The private psychologists who examined the veteran in June 2005 submitted two letters containing an opinion as to the etiology of the veteran's current adjustment disorder with anxiety and depression. In a letter dated in October 2005, the examiner states that it is his professional opinion that "[the veteran's] diagnosed adjustment difficulties with the accompanying depression and anxiety are secondary to his hearing loss and tinnitus." See October 2005 Letter, p. 1. The same psychologist reasserted his belief in a January 2006 letter, avowing that the veteran's psychological difficulties are "the inevitable and projected result of his worsening hearing loss and exacerbated tinnitus," and that those service-connected difficulties are "unquestionably the basis of" the veteran's psychological difficulties. See January 2006 Letter, page 2. The private psychologists provided the bases for the opinion, including a review of the veteran's medical history, and examination of the veteran. The veteran has therefore submitted competent medical nexus evidence establishing a connection between his current disability and his service-connected disabilities. The Board notes that the veteran failed to report for scheduled VA examination, and that the clinical records of the private psychologists have not been provided. However, the absence of such records is not dispositive of the veracity of the private psychologists' opinion. The record does not contain any indication that the credibility of the clinical opinions should not be accepted. In situations where there is an approximate balance of positive and negative evidence, the Board provides the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Here, the record exhibits a diagnosis of adjustment disorder with anxiety and depression exists, as well as evidence of service-connected disabilities of bilateral hearing loss and tinnitus. A medical opinion also verifies that the veteran's current diagnosis is proximately related to his service- connected disabilities. As a result, the Board must resolve the benefit of the doubt in the veteran's favor and find that service connection is in order. 38 U.S.C.A. § 1110, 5107. (CONTINUED ON NEXT PAGE) ORDER Service connection for chronic adjustment disorder with anxiety and depression, secondary to service-connected bilateral hearing loss and tinnitus disabilities, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs