Citation Nr: 1324183 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 11-14 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an anxiety disorder not otherwise specified (NOS), to include as secondary to service-connected tinnitus. ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1992 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2010, a statement of the case was issued in May 2011, and a substantive appeal was received that same month. The Board notes that, pursuant to the judicial holding in Clemons v. Shinseki, 23 Vet.App. 1 (2009), the RO also considered the Veteran's specific claim for service connection for PTSD, which was denied in the May 2010 rating decision. The Board also notes that the Veteran elected to appeal only that portion of the rating decision that denied service connection for anxiety/depression. FINDING OF FACT The Veteran's anxiety disorder NOS has increased in severity due to his service-connected tinnitus. CONCLUSION OF LAW The Veteran's anxiety disorder NOS has been aggravated by a disability incurred during his active duty service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). The Veteran was granted service connection for tinnitus, effective May 15, 2008, in an April 2009 rating decision. In February 2008, the Veteran reported that "[h]e has times when he gets pounding heart, shakey [sic], anxious, and worried" and that such symptoms were often associated with periods of stress. He was diagnosed with anxiety state NOS. The Veteran reported similar symptoms in March 2008, following which he was tested to ensure that he did not have an underlying heart condition; tests were negative for any heart disability. In March 2009, the Veteran reported the same symptoms persisting, and his diagnosis of anxiety state NOS was continued. He again reported chronic anxiety in October 2009. In December 2009, the Veteran's treating physician, Dr. J. T., submitted a nexus letter noting the Veteran's complaints of sleep disturbances caused by his service-connected tinnitus and opined that "[i]t is as likely as not that the sleep disturbance and persistent annoyance which results from tinnitus contributes to and exacerbated the [Veteran's] current anxiety." Dr. J. T. described the Veteran's specific symptoms as excessive worry, palpitations, difficulty sleeping, lack of concentration, and irritability, and noted that testing had ruled out the possibility of heart disease. The Board accepts this letter as probative evidence in favor of secondary service connection. In April 2010, the Veteran received a VA medical examination. The examiner noted the Veteran's symptoms of sleep disturbance and panic attacks, as well as "Severely Impaired" immediate memory. The VA examiner diagnosed the Veteran with anxiety disorder NOS with social phobia and panic attacks. While the examiner did not specifically state that the Veteran's anxiety disorder has been aggravated by his service-connected tinnitus, she did state that "[s]leep deprivation can aggravate anxiety to some degree" and provided an assessment of the degree to which the Veteran's sleep deprivation, attributed to his service-connected tinnitus, aggravates his anxiety beyond the baseline and the normal progression of the disability. Specifically, the examiner opined that the primary influence on the Veteran's diagnosed psychiatric condition is social anxiety and that the degree to which the Veteran's tinnitus-driven sleep deprivation aggravates his anxiety is less than 50 percent. As the VA examiner has implicitly stated that the Veteran's sleep issues, which are the result of his service-connected tinnitus, have aggravated his acquired psychiatric disorder, the Board must also accept this as probative evidence in favor of secondary service connection. After reviewing the totality of the evidence, including two positive nexus opinions, the only medical evidence of record, the Board is unable to find that the preponderance of the evidence is against the claims. There appears to be at least a balance of the positive evidence with the negative. Accordingly, the Board finds that service connection is warranted for anxiety disorder NOS, secondary to tinnitus. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in September 2009, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determination which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Entitlement to service connection for an anxiety disorder not otherwise specified (NOS), to include as secondary to service-connected tinnitus, is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs