Citation Nr: 1101172 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 08-15 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for reactive depression, to include as secondary to the Veteran's service-connected hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1975 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which denied entitlement to the benefit currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in Boston, Massachusetts in November 2010 to present testimony on the issue on appeal. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. Service connection is currently in effect for hearing loss and tinnitus. 2. The Veteran's diagnosed reactive depression is shown to be aggravated by his service-connected hearing loss and tinnitus, to include as a result of major sleep disturbances caused by tinnitus. CONCLUSION OF LAW Reactive depression is, at least in part, proximately due to, or the result of, the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, 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. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2010). As will be discussed in full below, the Board finds that service connection for reactive depression is warranted in this instance; therefore, a full discussion of whether VA met these duties is not needed as no prejudice can flow to the Veteran from any notice or assistance error based upon the full grant of the benefit sought. The Board does note, however, that the Veteran was provided notice in correspondence in April 2007 with respect to the process by which an initial disability rating and effective date would be established in the event that service connection is established. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection The Veteran seeks service connection for an acquired psychiatric disorder, claimed as a "nervous condition," which he contends is attributable to his service-connected hearing loss and tinnitus. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The Veteran prevails in either event. A claim will be denied only if the weight of the evidence is against a veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2010). In order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (holding that the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed). In this case, the Veteran's service treatment records reflect no complaint of, nor treatment sought for any psychiatric disability, to include depression or any sleep disturbances caused by tinnitus. At the time of three different service medical examinations, the Veteran was found to be psychiatrically normal. Service treatment records. During hearing testimony in November 2011, however, the Veteran indicated that onset of his current psychological difficulties was gradual and that it was "hard to tell" when he began to experience his current symptoms. He did estimate that his overall psychiatric problems began at some time while he was still in the military. Board hearing transcript, November 2010. The Board finds the Veteran's lay assertion to be somewhat tenuous and uncertain, as evidenced by his qualifying statement that it was difficult to pinpoint time of onset. Furthermore, the Veteran does not specify that his tinnitus initially resulted in sleep disturbances during military service, wherein the sleep disturbances appear to be the significant linking factor between the Veteran's service- connected tinnitus and his diagnosed depression. VA examination, July 2005. The Board finds that there is insufficient evidence that the Veteran's currently diagnosed reactive depression was directly incurred or aggravated during the Veteran's active military service, particularly in light of the absence of contemporaneous complaint or treatment sought for any psychological problems during service. 38 C.F.R. § 3.303. Nonetheless, in this instance, the Veteran is primarily asserting that his reactive depression is caused or aggravated, not directly as a disability incurred during military service, but rather as a result of his service-connected disabilities. See Claim for service connection, March 2005. As the evidence is more probative and ultimately sufficient to grant service connection under this alternate theory of entitlement on a secondary basis, the Board will proceed with that avenue of analysis. Secondary service connection may also be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non- service-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Here, upon VA Compensation and Pension examination for mental disorders in July 2005, the examiner diagnosed "Reactive depression secondary to personal stress as well as hearing difficulties and tinnitus." He further reiterated the Veteran's contention that a "significant amount of his depression is related to his hearing difficulties and his tinnitus which causes major sleep disturbances." VA examination, July 2005. This medical opinion is credible because it is based on a thorough review of the file and available treatment records and the examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to question the results of this examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, regulations binding upon VA make clear that "any" increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability will be granted service connection. 38 C.F.R. § 3.310(b) (emphasis added). Thus, although some component of the Veteran's diagnosed depression may be a result of personal stress unrelated to his military service, this does not preclude service connection so long as some increase in severity of his depression is a result the service-connected hearing loss and tinnitus. Thus, as a VA examiner has attributed the Veteran's depression to be at least partially caused or aggravated by service-connected disability, service connection for that depression is warranted on a secondary basis. 38 C.F.R. § 3.303. As an aside, however, it is important for the Veteran to note that the now service-connected reactive depression may be compensated only for the degree of disability over and above the degree of disability existing prior to the aggravation resulting from the Veteran's service-connected hearing loss and tinnitus. Allen v. Brown. Such a rating determination must be initially rendered by the Regional Office subsequent to this grant of the service connection benefit sought. ORDER Service connection for reactive depression is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs