Citation Nr: 1332185 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 07-28 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for a heart disability, to include as secondary to an acquired psychiatric disorder. 3. The evaluation of the Veteran's bilateral hearing loss, to include whether the disability rating reduction from 40 percent to 30 percent, effective August 1, 2008, was proper. 4. Entitlement to a total disability evaluation, based on individual unemployability, due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2006, January 2008 and May 2008 decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The November 2006 rating decision denied entitlement to TDIU. In the January 2008 rating decision, the RO denied service connection for PTSD and heart disease and proposed the reduction of the disability evaluation assigned for service connected bilateral hearing loss, from 40 percent to 30 percent. The May 2008 rating decision implemented the reduction of the disability evaluation assigned for service connected bilateral hearing loss to 30 percent, effective August 1, 2008. Based on the evidence of record and Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's service connection claim for PTSD, as reflected on the title page. This claim was previously before the Board in May 2011, at which time the Board remanded it for additional development. The requested development has been completed on the issue of entitlement to service connection for an acquired psychiatric disability, and the claim is properly before the Board for appellate consideration. Further development is needed on the other issues listed above. The issues of entitlement to service connection for a heart disability, to include as secondary to an acquired psychiatric disorder, the evaluation of bilateral hearing loss, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's major depressive disorder had its onset in service. CONCLUSION OF LAW An acquired psychiatric disability was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a psychiatric disability, major depressive disorder. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The service treatment records (STRs) show that at January 1980 mental health clinic treatment the Veteran complained of having problems with his job and with the Air Force. The STRs do not indicate that the Veteran had any follow up mental health treatment during service. At a September 2003 VA examination the Veteran complained of depression, anxiety, irritability, temper episodes, fatigue and lack of motivation. He was diagnosed with mood disorder due to obstructive sleep apnea manifested by a prominent and persistent disturbance in mood, predominantly irritability and temper problems. The Veteran wrote in August 2005 that his mood disorder was caused during military service when he had conflicts with his supervisor and was not granted leave when his sister was assaulted during a burglary of her home. At December 2005 VA treatment the Veteran reported being under a lot of stress due to being fired from his job and due to an associated lawsuit. December 2006 VA treatment notes state that the Veteran had insomnia due to tinnitus and that as a result he was depressed. At February 2007 VA social work the Veteran reported being depressed due to his inability to work and support his family. He said he had broken sleep, anger issues and a startle response. The Veteran said at March 2007 VA psychiatric treatment that during basic training he was exposed to explosions that caused him some stress and made him be a "nervous wreck." He also had nightmares related to service of planes flying overhead and described traumatic events from his post-service work as a police officer. The Veteran reported the symptoms of depressed mood, decreased interest in ham radio, decreased energy, decreased concentration, decreased appetite, and sleep disturbance with mid-cycle awakenings. He endorsed anxiety symptoms and was nervous in crowds. His treating psychiatrist diagnosed him with anxiety disorder, NOS. Subsequent VA mental health treatment notes do not discuss the relationship with service. The Veteran wrote in a May 2011 statement that he was in close proximity to taxiing aircraft and to a runway while based in Germany. While there be began to have traumatic nightmares, sleep deprivation, and a decline of social skills which hurt his job performance. The Veteran had another VA examination in August 2011. The examiner noted that while he considered it traumatic to have his rank decreased during service and to be put in a barrack with drug abusers before discharge, this did not meet the criteria for the causes of trauma for PTSD. While working as a police officer after service he was exposed to traumatic events. The Veteran had intrusive recollections of these events and recurrent nightmares about once a month. He avoided watching police shows, violent shows, and anything that reminded him of these incidents. He isolated himself and had trouble sleeping nightly, although the examiner noted that latter was due more to sleep apnea; other symptoms included concentration problems, exaggerated startle response, irritability, a short temper, chronic depressive symptoms, crying spells, insomnia, poor appetite with fluctuating weight, anhedonia, lethargy, and fatigue. On examination the Veteran was oriented to everything except the date. Mood was somewhat anxious, affect was appropriate, and he did not appear overtly depressed. There was no evidence of thought disorder, hallucinations, delusions, obsessive ritualistic behavior, panic attacks, inappropriate behavior or homicidal ideation. The Veteran was diagnosed with major depressive disorder, recurrent, severe and PTSD, chronic. The examiner felt that the major depressive disorder was the primary diagnosis and that it appeared to have begun during military service because the Veteran got depressed over his dysfunctional state, including not sleeping well. It appeared to the examiner that the Veteran had some degree of depression over the years and that it became serious when he had a heart attack, which affected his ability to work as a police officer. The examiner then wrote that it was "conceivable" that the depressive disorder began during military service and had certainly been exacerbated by subsequent health problems. The PTSD did not appear related to active military service because it developed solely as a reaction to events from the Veteran's work as a police officer. The Veteran is competent to provide reports of his continued psychiatric symptoms, and the Board finds the Veteran's reports to be credible. See Layno v. Brown, 6 Vet. App. at 470. Furthermore, the Veteran's lay statements describing his psychiatric symptoms supported the diagnosis of major depressive disorder by medical professionals. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Considering all of the evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's psychiatric disability is related to service. After discussing the Veteran's history and the findings on examination, the August 2011 VA examiner stated that the Veteran had major depressive disorder that appeared to have its onset in service. Therefore, the opinion supports the Veteran's claim. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl v. Nicholson, 21 Vet. App. at 124. The contribution of events from after service to the major depressive disorder does not nullify that the Veteran's military service also contributed to it. In weighing the evidence overall, the Board finds that it is at least in equipoise as to whether the Veteran's acquired psychiatric disability is related to service. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for major depressive disorder is granted. REMAND In June 2011, the Veteran wrote that he had received VA vocational rehabilitation and employment services. These records have not been associated with the claims file. Pursuant to VA's duty to assist, VA has an obligation to obtain relevant records in the custody of a Federal agency. 38 C.F.R. § 3.159(c)(2). Further, he indicated having private treatment with Dr. Raj Balijapally and Dr. Eli Mansour. The record does not contain treatment records from Dr. Mansour and contains treatment records from August 2005 to February 2006 for Dr. Balijapally. VA has not attempted to obtain authorization in order to obtain these additional treatment records. The duty to assist requires that VA make reasonable efforts to obtain private treatment records that the claimant identifies. 38 C.F.R. § 3.159(c)(1). The Board grants service connection herein for major depressive disorder. The Veteran is seeking service connection for a heart disability, to include as secondary to psychiatric disability, and there has not been a VA examination for the heart disability. In light of the grant of service connection for major depressive disorder, the duty to assist requires that the Veteran be scheduled for a VA examination for his heart disability. VA treatment records to June 2012 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from June 2012 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for service connection a heart disability, to include as secondary to psychiatric disability, the evaluation of bilateral hearing loss, and entitlement to a TDIU. The Veteran should be specifically requested to provide authorization to obtain treatment records from Dr. Balijopally and Dr. Mansour. Document all unsuccessful attempts to obtain such records. There must be at least two attempts made to obtain any private treatment records for which the Veteran submits the proper authorization. 2. Notify the Veteran that he may submit lay statements from himself and from individuals who have first-hand knowledge of his heart disability, including its relationship to his service and its onset, his hearing loss, and the effect of his service-connected disabilities on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain the Veteran's VA vocational rehabilitation records. 4. Obtain the Veteran's VA treatment records from June 2012 to the present. 5. After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination to determine nature and etiology of his heart disability. The claims folder must be made available and reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's heart disability had its onset in service or within one year of separation or is etiologically related to service. The examiner must also provide an opinion on whether it is at least as likely as not that the Veteran's heart disability was caused, at least in part, or aggravated by his psychiatric disability. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 6. Readjudicate the claims on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs