Citation Nr: 1330948 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-02 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety, secondary to service-connected hearing loss and tinnitus. 2. Entitlement to a total disability rating based on unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1963. This matter originally comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2013. A transcript of the hearing is of record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record is at least in equipoise with respect to whether the Veteran's current diagnoses of a depressive disorder and generalized anxiety disorder are in part caused by the Veteran's service-connected hearing loss and tinnitus. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a depressive disorder and generalized anxiety disorder were caused by his service connected hearing loss and tinnitus. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal with respect to entitlement to service connection for a psychiatric disability. 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. II. Analysis The Veteran contends that he has a current psychiatric disorder that is caused by or aggravated by his service-connected hearing loss and tinnitus. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also 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. 38 C.F.R. § 3.310(a). Similarly, 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); Allen v. Brown, 7 Vet. App. 439 (1995). In assessing whether the Veteran is entitled to service connection for a psychiatric disorder, the evidence must show that the Veteran has current diagnosis of the claimed disability. VA and private treatment records reveal that the Veteran has current diagnoses of a depressive disorder and generalized anxiety disorder. Accordingly, the Veteran has a current diagnosis of the claimed disability. With respect to the issue of whether the Veteran's depressive disorder and generalized anxiety disorder are secondary to his service-connected bilateral hearing loss and tinnitus, the record contains conflicting medical opinions. In this regard, a letter from the Veteran's VA psychiatrist provided the opinion that the Veteran's impaired hearing has been a contributing factor to his depression. The psychiatrist indicated that this opinion was based on her treatment of the Veteran's psychiatric disorders; however, she did not provide any other supporting rationale for her opinion. VA treatment records dated in January 2008 and April 2009 document that the Veteran's deafness is contributing to the Veteran's depression and anxiety. After reviewing the Veteran's VA treatment records and evaluating the Veteran on two separate occasions, a private psychiatrist provided an opinion in May 2010 that the Veteran's dysthymia and generalized anxiety disorder were secondary from the injuries he sustained in service, i.e. deafness and tinnitus. He explained that his dysthymia and generalized anxiety disorder started in the Veteran's early twenties and by simple deduction they were secondary to his deafness and tinnitus. The psychiatrist noted that the Veteran reported difficulty communicating at work and in social situations due to his hearing impairment after he was discharged from military service and around that time he developed depression. The Board finds that the private psychiatrist opinion is persuasive and probative as the examiner reviewed the Veteran's pertinent treatment records and provided a clear explanation for his opinion based on post service treatment records and clinical experience. In contrast, after reviewing the claims file and interviewing the Veteran, an August 2008 VA examiner provided the opinion that there is not sufficient evidence to say that the Veteran's depression is related to his hearing loss. He recommended that the Veteran should request new hearing aids and be provided with a three to six month trial to see if his depression improves with hearing aids. Without this additional information, he would be resorting to mere speculation. As the examiner was unable to provide a clear or definite opinion, the Board finds that this statement has no probative value. See Fagan v. Shinseki, 573 F.3d 1282, 1288-89 (Fed. Cir. 2009) (holding that the Court did not err as a matter of law when it treated as "non-evidence" an examiner's statement that recites the inability to come to an opinion). The examiner also provided the opinion that the Veteran's panic disorder, previously diagnosed as an anxiety disorder, with agoraphobia is clearly not etiologically related to his hearing loss. The examiner noted that the panic episodes described by the Veteran appear to come out of nowhere and he had to leave certain situations as he was overcome with panic and anxiety. The Veteran did not relate this to hearing loss, but rather being in a crowded place with people all around him. The Board finds that this opinion is probative as the examiner reviewed the record and provided a clear explanation for his opinion based on the evidence of record and clinical experience. After a careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinion over the positive medical opinion with respect to whether the Veteran's anxiety disorder is caused or aggravated by his service-connected hearing loss and tinnitus. Furthermore, the evidence is at least in equipoise on whether the Veteran's depressive disorder is in part caused by his service-connected hearing loss and tinnitus. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's current depressive disorder and generalized anxiety disorder are caused by his service-connected bilateral hearing loss. As such, the Board resolves any reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Accordingly, the Board finds that entitlement to service connection for a depressive disorder and a generalized anxiety disorder is warranted. ORDER Entitlement to service connection for a depressive disorder and generalized anxiety disorder is granted. REMAND With respect to the Veteran's claim of entitlement to a TDIU, the Board notes that the claim is inextricable intertwined with the grant of service connection for a depressive disorder and generalized anxiety disorder, because the TDIU issue may be affected by the assignment of the disability rating and effective date for the grant of service connection for depressive disorder and generalized anxiety disorder. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the assignment of both a disability rating and effective date for service connection for a depressive disorder and generalized anxiety disorder. Furthermore, if the RO determines that the disability rating of the Veteran's depressive disorder and generalized anxiety disorder is less than 100 percent, then the RO should schedule the Veteran for a VA examination and opinion with respect to the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following action: 1. After the RO has assigned a disability rating and effective date for the grant of entitlement to service connection for a depressive disorder and generalized anxiety disorder, schedule the Veteran for a VA examination by an appropriate clinician to determine whether the Veteran's current service-connected disabilities result in the Veteran being unemployable. The claims file must be made available for review and the examiner's report should reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. The examiner should comment on the Veteran's level of occupational impairment caused by his depressive disorder, generalized anxiety disorder, hearing loss and tinnitus. Based on the interview, examination and review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran is unable to obtain or maintain substantially gainful employment due only to his service-connected disabilities (at this time he is only service-connected for depressive disorder, generalized anxiety disorder, bilateral hearing loss and tinnitus), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examiner should provide an explanation as to why he or she believes that the Veteran is or is not employable. 2. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to a TDIU, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has 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. 2013). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs