Citation Nr: 1310040 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-00 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder not otherwise specified, to include as secondary to service-connected hearing loss and tinnitus. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served in the US Army from January 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). Since that time, the appellant has relocated to Florida and his claim is now being serviced by the St. Petersburg, Florida, RO. In September 2010, the Veteran failed to report without good cause for a Travel Board hearing. 38 C.F.R. § 20.704(d) (2012). No further development with regard to a hearing is necessary. In November 2010 and February 2012, the Board remanded the claim for additional development. In January 2013, the Board requested a Veterans Health Administration (VHA) opinion and in February 2013, the opinion was prepared. The Veteran has not been afforded an opportunity to review and comment on the VHA opinion, but given the decision below, he is not prejudiced by the lack of notice of the opinion. Bernard v. Brown, 4 Vet. App. 384 (1993). FINDING OF FACT The competent medical evidence shows that the depressive disorder not otherwise specified was aggravated by the service-connected hearing loss and tinnitus. CONCLUSION OF LAW The depressive disorder not otherwise specified was aggravated by the service-connected hearing loss and tinnitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2007, January 2008, November 2010 (pursuant to the November 2010 Board remand), and February 2012 (pursuant to the February 2012 Board remand) of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In November 2007 correspondence, VA notified the appellant of how VA determines the disability rating and effective date. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations, to the extent possible. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). The Veteran submitted a statement from his private doctor. The RO and Appeals Management Center obtained VA treatment records, to include records pursuant to the two Board remands. The appellant underwent VA examinations in February 2011 and March 2012 pursuant to the two remands, and the March 2012 VA examiner prepared an addendum to the examination report in June 2012. The Board obtained a VHA opinion. In light of the above, VA complied with the directives of the two Board remands. Stegall v. West, 11 Vet. App. 268 (1998). The RO attempted to obtain the Veteran's service treatment records. In January and March 2008, the service department reported that this matter was a fire-related matter and that there were no service treatment records. The RO informed the appellant of the service department's finding in the January 2008 correspondence and the April 2008 rating decision, and the RO in March 2008 prepared a memorandum, the subject of which was a formal finding on the unavailability of the service treatment records. VA has a heightened duty to assist the Veteran in developing his claim since the VA records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Prior to the Veteran filing his claim in October 2007, 38 C.F.R. § 3.310(b) was amended effective October 10, 2006 to provide the following as to aggravation of nonservice-connected disabilities: 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)). Analysis VA examination reports reflect a diagnosis of depressive disorder not otherwise specified. The Board has reviewed the VA treatment records and the VA examination reports. After considering all the evidence of record, the Board finds the preponderance of the most probative and competent evidence shows that the Veteran's depressive disorder not otherwise specified was not incurred in-service and that there is no nexus between the current depressive disorder not otherwise specified and service. In fact, at both VA examinations, the appellant denied not only being treated for depression in service but also experiencing any symptoms of depression during active service. The claimant reported at both examinations that his depression began after active service. The February 2011 VA examiners opined that the depressive disorder was not related to or caused by his military service. The examiners' basis was the Veteran's denials as stated above and the fact that the appellant reported that he began experiencing depressive symptoms approximately 30 years ago. The March 2012 VA examiner indicated that she concurred with the February 2011 VA examiners' opinion. As for secondary service connection theory of entitlement, service connection is in effect for hearing loss and tinnitus. Turning first to direct causation, the February 2011 VA examiners opined that the depressive disorder does not appear to secondary to or the result of the bilateral hearing loss and tinnitus. The examiners' basis was the Veteran reported first experiencing depressive symptoms approximately 30 years ago whereas he indicated first noticed his hearing loss approximately five to six years ago. The examiners noted that based on the appellant's reporting, the depression appears to have preceded the hearing loss and that therefore the depressive disorder not otherwise specified was not caused by the hearing loss and tinnitus. The March 2012 VA examiner indicated that she concurred with the February 2011 VA examiners' opinion. After considering all the evidence of record, the Board finds the preponderance of the most probative and competent evidence shows that the Veteran's depressive disorder not otherwise specified was not caused by the service-connected hearing loss or tinnitus. As to aggravation, there is conflicting medical evidence. Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (the Court) has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The VA examiner who conducted the March 2012 examination provided an addendum opinion in June 2012. In this opinion, she found that it was not likely that the Veteran's psychiatric disability was aggravated beyond its natural progression by bilateral hearing loss and tinnitus. In providing a rationale for this decision, the examiner noted that the Veteran had difficulty identifying factors that contributed to depressive symptoms or nervousness. The Veteran had postulated that it may have been caused by his Parkinson's disease but could not identify any specific factors. The examiner noted that the Veteran did not mention experiencing negative effects from hearing loss and tinnitus. Therefore, the examiner found that the Veteran's depressive disorder, not otherwise specified, was not permanently aggravated by hearing loss and tinnitus. The Board questions the factual predicate of the June 2012 opinion. The examiner indicated that the Veteran did not mention experiencing negative effects from hearing loss and tinnitus, but a review of the February 2011 and March 2012 VA examination reports clearly reflects that the Veteran reported having trouble with conversations on account of hearing loss and asserted that this would lead to withdrawal and, in his opinion, result in an increase in depressive symptoms. Also, in the March 2012 examination report, the examiner reached a very dubious conclusion about the Veteran's February 2008 statement as to the causal effect of hearing loss on depression. The Veteran's assertions in this regard seem to have been alternately ignored or misconstrued by the examiner who provided the June 2012 opinion, and the opinion accordingly appears to be based upon an inaccurate premise. In light of the above, the Board gives little weight to the opinion of the March 2012 VA examiner. The VHA expert opined that the Veteran's depression was at least as likely as (a 50 percent or greater probability) to have been permanently increased by the effects of the bilateral hearing loss and tinnitus. The expert stated that it was clear that the Veteran perceived the hearing problems as causing him to withdraw and be more depressed and that this perception was documented in his statements at the February 2008 VA examinations. The expert noted that veterans do not always come to these examinations coached on the exact phrases the examiners desired. The expert indicated that in these cases, opinions should be weighed by a veteran's perceptions of causality and that the benefit of the doubt should be provided as it is intended by the fact that only a 50 percent or greater probability is required. The Board gives greater weight to the opinion of the VHA expert than to the opinion of the March 2012 VA examiner because of the problems with the factual predicate of the March 2012 VA examiner's opinion. Hence, secondary service connection is in order. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.310(b). The benefit sought on appeal is allowed. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder not otherwise specified, as secondary to service-connected hearing loss and tinnitus by way of aggravation is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs