Citation Nr: 1110459 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 09-11 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include as secondary to service-connected tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from June 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in a July 2010 video conference hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND In July 2008, the Veteran submitted a claim of entitlement to service connection for an acquired psychiatric disorder. He has claimed that he currently experiences an acquired psychiatric disorder as a result of his service-connected tinnitus. He argues that he has trouble sleeping due to the tinnitus and this results in anxiety. The Veteran has reported that he had had tinnitus since his discharge from active duty. In August 2009, service connection was denied for a sleep disorder claimed as due to tinnitus. The Veteran did not appeal that rating decision and it is now final. Associated with the claims file are medical records and reports of VA examinations which indicate that there is an etiologic link between the Veteran's service-connected tinnitus and a mental disorder. However, the medical evidence which links a currently existing mental disorder to the Veteran's active duty service is not based on a review of all the evidence of record. Significantly, medical records dated in the 1990's indicate the Veteran had had problems with mental disorders at that time but the records from this time period were completely silent as to complaints of, diagnosis of or treatment for problems with tinnitus. The United States Court of Appeals for Veterans Claims (the Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In October 1999, it was noted that the Veteran had a history of taking antidepressant medication for the last couple of years as a result of going through a very emotionally turbulent time. Tinnitus was not referenced as being a problem. In November 1999, it was noted that the Veteran was still having difficulty with early morning awakening and difficulty going back to sleep. The pertinent assessment was anxiety. Significantly, there was no mention of any problems with tinnitus. In October 2004, it was written that the Veteran had a history of anxiety and panic attacks which seemed to be worse in 1998 when the Veteran was going through a divorce. The Veteran denied having difficulty sleeping at night but indicated that, on occasion, he would wake up at 3 a.m. Again there was no mention of tinnitus being the cause of the awakening. A clinical record dated in June 2006 reveals the Veteran sought treatment for tinnitus "that had been bothersome for him for the better part of a year." In December 2006, the Veteran reported occasional problems with anxiety. His problems began with a break-up of his wife several years prior. There was no mention of problems associated with tinnitus. A December 2006 clinical record from Dr. O. indicates the physician assessed the Veteran as having both mild anxiety disorder and tinnitus. There is no indication in the clinical record that the two were linked. In February 2007, the Veteran wrote that he was questioned about his tinnitus the prior summer. The Veteran reported that the whistling or ringing had increased over time. The prior summer was the first time he saw a specialist who asked about the tinnitus symptoms, performed a hearing test and diagnosed tinnitus. In January 2009, Dr. O. wrote that the Veteran reported his tinnitus was getting to the point where it interfered with his sleep. He had recently been given a diagnosis of sleep disorder due to tinnitus, insomnia type. It was also noted that the Veteran had a level of daily anxiety which was worse on days following difficult nights of sleep. At the time of a February 2009 VA examination, the Veteran alleged that, in 1997, he was going through a divorce and not sleeping as he heard a roaring in his ears and could not go back to sleep. He was tired and hated not sleeping and therefore, attempted suicide. He reported tinnitus kept him awake at night. He was able to sleep through the night on medication. This allegation that he tried to commit suicide due to tinnitus is not supported by any clinical records. In March 2009, Dr. O. wrote that he saw the Veteran in December 2006 for symptoms of anxiety. The Veteran met the diagnosis for general anxiety disorder which symptoms include restlessness or feeling keyed up or on edge, irritability, muscle tension and sleep disturbance. In 2006, the Veteran reported ringing in his left ear and a diagnosis of tinnitus was confirmed. In March 2009, the Veteran informed the author that tinnitus was interfering with his sleep and his anxiety noticeably increased on days following a sleepless night. The author opined that the current diagnosis for the Veteran's anxiety disorder is at least as likely as not due to his tinnitus disorder. This opinion did not address the fact that the Veteran had been treated for mental disorders prior to the time when problems with his tinnitus allegedly surfaced. In June 2009, Dr. O. wrote that he had diagnosed the Veteran as having generalized anxiety disorder. The anxiety and worry were associated with irritability, difficulty concentrating, restlessness, feeling keyed up and on edge, muscle tension and sleep disturbance. The physician wrote that the Veteran's anxiety, worry and physical symptoms do cause clinically significant distress and impairment in his social and occupational functioning. This disturbance is not due to any direct physiological effects of a substance such as medication or due to a general medical condition. This opinion reduces the probative value of Dr. O.'s March 2009 statement in that it appears that Dr. O. is now attributing the Veteran's symptomatology, including in pertinent part, sleep disturbance, to the Veteran's anxiety and worry. Furthermore, the physician's statement indicates that the anxiety and worry were not due to a general medical condition which the Board interprets to include tinnitus. In July 2009, a clinician wrote that the Veteran was seeking an increase in compensation and perhaps the best route for this would be to make the case that the tinnitus itself is disabling rather than seeing it as the cause of his anxiety. This statement seems to indicate that the author did not find the Veteran's mental disorder to be linked to tinnitus. In November 2009, a VA psychiatrist wrote that it was an established medical fact in his opinion, that people with tinnitus experience mental distress, depression, anxiety, and decreased concentration because of continuous ringing in the ears. If an individual already has a mental disorder, there may or may not be an increased vulnerability to the emotional and mental aspects of tinnitus. The examiner found it reasonable to assume that the Veteran was bothered by tinnitus in the way he indicated. The examiner wrote that there was no need to prove a nexus between panic disorder and generalized anxiety disorder and tinnitus "in that [the Veteran] is not claiming the tinnitus was the cause of the anxiety disorders." Rather one could simply assess the Veteran based on the fact that we know that some people with tinnitus have anxiety and depression directly related to developing tinnitus. This can be brief as in an adjustment disorder or chronic. The examiner wrote that it would seem quite naive to think that a person could have continuous ringing in the ears and not experience some distress related to this, either initially or ongoing. This opinion does not actually document that the Veteran has a mental disorder due to his tinnitus. The evidence merely indicates that "some people" with tinnitus have anxiety and depression related to the tinnitus. A treatise submitted by the Veteran includes that annotation that patients report that an increasing level of anxiety also exacerbates tinnitus symptoms. This evidence indicates that anxiety exacerbates tinnitus and not the other way around. The Board notes that the Veteran has alleged that he had had difficulty with awakening during the night and not being able to fall back to sleep due to tinnitus. The Veteran has not alleged in any way, however, that he ever had difficulty with initially falling asleep due to tinnitus. It is not apparent to the Board how the Veteran initially could fall asleep without difficulty but then have difficulty falling back to sleep if the tinnitus is the same. If the tinnitus were of sufficient severity to keep the Veteran from falling back to sleep, presumably, it would have been sufficient to also keep the Veteran from initially falling asleep. The Board finds this conflicting fact pattern is a medical question which must be addressed by health care professionals. The Board finds that the clinical evidence of record documents that the Veteran had had problems with mental disorders, beginning at least as early as the 1990's, without any mention at all regarding problems with tinnitus. It was only after the Veteran was diagnosed as having tinnitus was there any evidence in the medical records which indicated that there was a link between tinnitus and an acquired psychiatric disorder. None of the medical evidence which links tinnitus to a mental disorder has addressed this pertinent history. The Board finds that another VA examination is required to determine if there is an etiologic link between the service-connected tinnitus and an acquired psychiatric disorder which takes into account all the pertinent evidence of record. The evidence of record supports a finding that the Veteran has reported he had had tinnitus since his release from active duty but, according to the Veteran, the tinnitus had significantly increased in symptomatology in the 2000's. It is not apparent to the Board if tinnitus is a disability which could increase in symptomatology many years after exposure to the acoustic trauma which was the genesis for the disability. This is a medical question. The Board finds that an opinion should be obtained as to whether tinnitus is a disability which is susceptible to a permanent increase in symptomatology many years after the initial exposure to the acoustic trauma. There appears to be missing medical records. Clinical records associated with the claims file reference the fact that the Veteran sought treatment for a suicide attempt, apparently in the 1990's and that he was prescribed with medication to treat mental disorders sometime around 1997. Furthermore, the clinical records associated with the claims file indicate that, sometime around 1997 or 1998, the Veteran was having difficulties associated with a divorce. These medical records have not been associated with the claims file. Additionally, the Veteran has submitted copies of medical records from Dr. O. Significantly, these are only partial copies of the records. It appears that not all the medical records have been associated with the claims file. Attempts should be made to obtain all outstanding medical records. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for mental disorders and/or tinnitus since his discharge from active duty. After securing any necessary releases, obtain those records identified by the Veteran which have not already been associated with the claims file. The Board is particularly interested in obtaining the Veteran's medical records from the 1990's and also obtaining a complete copy of Dr. O.'s medical records. Regardless of the Veteran's response, obtain all outstanding VA medical records. 2. Schedule the Veteran for a VA examination by a suitably qualified health care professional or professionals who is/are to provide an opinion as to whether the Veteran currently experiences a mental disorder which is etiologically linked to his service-connected tinnitus. The claims folder should be made available to the examiner for review of the pertinent documents therein in connection with the examination. The report should reflect that such a review was conducted. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran has a mental disorder which is etiologically linked to his service-connected tinnitus. The opinion must reconcile all the evidence of record including medical evidence dated in the 1990's which documents the presence of mental disorders without any reference to problems with tinnitus. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that tinnitus would significantly increase in symptomatology many years after the disorder began during the Veteran's active duty service. The examiner should also reconcile, to the extent possible, the treatise evidence regarding a possible link between tinnitus and an acquired psychiatric disorder. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. A detailed rationale, including pertinent findings from the record, must be provided for all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner should so state and explain why such an opinion would be speculative. 3. Thereafter, please review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the December 2009 Supplemental Statement of the Case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant and his representative have 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. 2010). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).