Citation Nr: 1333767	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-13 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for depression, to include as secondary to service-connected tinnitus and/or low back strain.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1977 to April 1981 and July 2004 to February 2006, including service in Iraq.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  


FINDING OF FACT

The Veteran's depression is caused by his service-connected tinnitus.


CONCLUSION OF LAW

The criteria for service connection for depression have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

Although in filing this claim the Veteran sought service connection for depression as due to his service-connected back disability, and particularly, his service-connected tinnitus, he subsequently also asserted entitlement to service connection service connection on a direct basis.

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).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310.  Further, the United States Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability.  See 71 Fed. Reg. 52744 (2006).  As this claim was filed in 2009, the amended regulation applies. 

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 symptoms.  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, 581 F.3d at 1316; 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); Jandreau.

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, 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 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, 7 Vet. App. at 511.  

Service connection is in effect for tinnitus and low back strain.  The Veteran contends that his depression was proximately caused or aggravated by his service-connected tinnitus and/or low back strain.  

Medical records establish that the Veteran has a current disability of depression.  VA treatment notes show he was first diagnosed in February 2009 with depression, not otherwise specified, and that diagnosis has continued to the present.

The Veteran reports that the tinnitus interferes significantly with his sleep, resulting in "a constant state of fatigue."  See Lay Statement dated September 2009; Notice of Disagreement dated December 2009.  He reports that the fatigue causes errors and typing mistakes at work, frustration, interpersonal problems, short temper and yelling, and dozing off while driving.  The tinnitus also affects his relationship with his spouse because he sleeps in another room in an attempt to drown out the tinnitus with television or white noise.  The tinnitus also impairs his ability to conduct phone conversations at work and at home.  The Veteran contends that all of these effects contribute to his depression.

Less than a year after separation from service, a January 2007 VA treatment record documents that the Veteran's tinnitus kept him awake at night.  A June 2009 private treatment note from otolaryngologist Dr. O states that the Veteran finds "the tinnitus quite troubling and it exacerbates his anxiety and depression."

At the February 2009 VA initial mental health consult that resulted in his diagnosis of depression, the psychiatric nurse practitioner (PNP) included tinnitus in Axis III.  "Axis III is for reporting current general medical conditions that are potentially relevant to the understanding or management of the individual's mental disorder."  American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  Multi-axial assessments for neuropsychiatric disorders have been construed by the Court to provide competent medical evidence of an etiological link between the diagnosed condition and active service.  See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998).  By listing tinnitus as part of his Axis III assessment, the VA PNP made a determination that the Veteran's tinnitus was potentially relevant to the understanding or management of his depression.

VA treatment records dated February 2010 and March 2010 both state that his "psychological stress [is] related to tinnitus."

In summary, there are private and VA treatment records suggesting a causal relationship between the Veteran's depression, his sole diagnosed psychiatric disability, and service-connected tinnitus.  There is no medical evidence of record in conflict with this opinion.  The Board finds that the medical evidence is at least in equipoise.

The Board concludes that the evidence supports service connection.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen.  A current disability has been shown to exist, and the medical evidence of record is at least in equipoise with respect to whether the depression was caused by the Veteran's service-connected tinnitus.  Therefore, resolving reasonable doubt in favor of the Veteran, service connection for such disability on a secondary basis is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert.

Because service connection is being granted on a secondary basis as caused by a service-connected disability, an analysis of whether direct service connection is warranted, to include under the provisions of 38 C.F.R. § 3.317, is unnecessary.  

ORDER

Service connection for depression is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs