Citation Nr: 1335464 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-18 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and depression, claimed as secondary to service-connected bilateral hearing loss and tinnitus disabilities. 2. Entitlement to service connection for a sleep disorder, claimed as secondary to service-connected bilateral hearing loss and tinnitus disabilities. 3. Entitlement to service connection for a balance condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1955 to June 1959 and from July 1959 to June 1961. These matters are before the Board of Veterans' Appeals (Board) on appeal from April and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran appeared for an RO hearing in December 2011 and a video conference hearing in October 2013. Although the Veteran's claim for service connection for depression was originally characterized as such, he has also been diagnosed with a mood disorder due to medical conditions. To adequately reflect the claims, the issues have been amended accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As to the psychiatric disorder claim, the evidence of record is unclear as to a current psychiatric diagnosis. VA examination reports from December 2010 and May 2012 show that the Veteran did not meet the DSM criteria for diagnosis of depression. Nevertheless, starting in January 2012, VA mental health treatment notes, which had consistently shown a diagnostic assessment of rule out mood disorder with depressive features due to medical condition (dementia and tinnitus), began showing a diagnostic assessment of mood disorder with depressive features due to medical condition (dementia and tinnitus). Thereafter, VA treatment records consistently show negative depression screens and that the Veteran denied experiencing a depressed mood or neurovegetative symptoms of depression although he continued to be frustrated by chronic tinnitus. In light of the foregoing, it remains unclear whether the Veteran has an acquired psychiatric disorder, to include depression and a mood disorder depressive features due to medical condition that is proximately due to or caused by his service-connected hearing loss and tinnitus. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, it is necessary to obtain a new examination to determine the nature and etiology of any acquired psychiatric disability, to include a mood disorder and depression, diagnosed since the claim for service connection for such was received. As to the sleep disorder claim, in May 2012 the Veteran was afforded a VA examination to determine the nature and etiology of any current sleep disorder. The examiner erroneously stated that the onset of the Veteran's sleep complaints which are claimed to be related to tinnitus began following initiation of medication for treatment of his non service-connected dementia, which has known effects on sleep. Indeed, it appears that the Veteran complained of difficulty sleeping due to worsening tinnitus on VA audiology examination in March 2009. The examiner further noted that a sleep study had not been conducted. In light of the foregoing, he stated that it would be speculative for him to diagnose a sleep disorder, let alone link any diagnosed sleep disorder to the Veteran's service-connected tinnitus. Given the examiner's apparent reliance on erroneous chronology as to when the Veteran initially reported sleep disturbance due to tinnitus and his initiation of medication with know side effects on sleep and his statement that a sleep study is necessary prior to stating whether the Veteran has a current sleep disorder, it is necessary to afford the Veteran VA sleep disorders examination to determine the nature and etiology of his currently claimed sleep disorder, if any. Finally, as to the balance disorder claim, the Veteran's service treatment records show numerous relevant findings, including the presence of a harsh systolic aortic heart murmur along the left sternal border on enlistment examination in June 1955 and colds/head colds and upper respiratory infections on at least five occasions between August 1960 to March 1961. Post-service treatment records indicate dizzy spells in July 2001, vestibular complaints on VA audiology consultation in February 2009, and a diagnostic impression of brief episodes of dizziness on arising related to changes in blood pressure in April 2011. Significantly, a February 2011 VA otolaryngology consult shows a diagnosis of benign primary positional vertigo. A March 2013 VA audiology note refers to a March 2013 vestibular evaluation which was noted to be consistent with diagnosis of right posterior benign primary positional vertigo. The evidence above suggests that the Veteran may have a current balance disorder related to injury, event, or illness during his active military service. Thus, it is necessary to afford the Veteran a VA examination to determine the nature and etiology of any current balance disorder. 38 C.F.R. § 3.159(c)(4). Moreover, a March 2012 electronic VA audiology note shows that the Veteran reported that he was being privately evaluated for benign primary positional vertigo and that he had been referred for vestibular assessment. These records have yet to be requested or associated with the claims file for review. Also, a March 2013 VA audiology note refers to a vestibular evaluation dated on March 27, 2013, which is not currently associated with the claims file for review. As these records are relevant to the claim on appeal, additional development efforts are necessary. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Contact the Veteran and request that he provide the names and addresses of all medical care providers who have treated him for the claimed disabilities and specifically request that he provide authorization necessary to obtain pertinent clinical private treatment records from his private primary care physician, Dr. LN; Yale Medical and any the treatment provider who referred him there as alluded to in a March 2012 audiology note; and the treatment provider who evaluated him for vertigo the treatment provider who performed vestibular evaluation on March 27, 2013, as alluded to in a May 2013 VA audiology note. After securing the necessary releases, if any, the RO/AMC should obtain any records which are not already in the claims file. Also obtain ongoing VA treatment records, if any, from the West Haven and Newington VAMCs dated since May 2013. If the RO/AMC cannot locate the requested records, it this must be documented. The RO/AMC must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA mental disorders examination to determine the nature, onset, and etiology of all acquired psychiatric disorders diagnosed since September 2010, to include depression and a mood disorder with depressive traits due to medical condition. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA and VBMS, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. The examiner must address the following: A.) Does the Veteran have a current acquired psychiatric disorder, to include depression and a mood disorder with depressive traits due to medical conditions? If not, does the evidence of record indicate a previous acquired psychiatric disability now resolved? B.) For each current and resolved psychiatric disorder diagnosed since September 2010, the examiner must address whether it is at least as likely as not (50 percent probability) that the disorder was incurred in, aggravated (permanently worsened beyond normal progression) by, or is otherwise related to the Veteran's active military service or aggravated by his service-connected bilateral hearing loss and tinnitus disabilities. In the case of aggravation, to the extent practicable, the examiner should indicate a baseline of symptomatology for the Veteran's psychiatric disorder, and the aggravation of such symptomatology by his service-connected bilateral hearing loss and tinnitus disabilities. The examiner must provide a complete written rationale for any opinion offered and must also consider the lay statements of the Veteran. 3. Schedule the Veteran for a VA general medical examination to address his claimed sleep and balance disorders. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA and VBMS, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. The examiner must then address whether the Veteran has a current sleep disorder. As for any sleep disorder diagnosed on examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) caused or aggravated by his service-connected bilateral hearing loss and tinnitus disabilities. As to the claimed balance disorder, the examiner must first clarify whether the Veteran has a disequilibrium disorder, to include vertigo. If so, the examiner must address whether it is at least as likely as not that any currently diagnosed disequilibrium disorder is the result of a disease or injury in active service (including frequent colds and elevated blood pressure), or had its onset in service. If not, please address whether it is at least as likely as not that such disorder was caused or aggravated by service-connected bilateral hearing loss or tinnitus. If no diagnosis is rendered, the previous reports concerning vertigo and dizziness must be addressed. The examiner must provide a complete written rationale for any opinion offered and must also consider the lay statements of the Veteran. 4. After ensuring that all requested development has been completed, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).