Citation Nr: 1337751 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-15 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for major depressive disorder, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to June 1995. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the Department of Veterans Affairs (VA) Muskogee, Oklahoma Regional Office (RO). In March 2013 the Veteran testified at the RO during a video conference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. After the hearing, the Veteran submitted additional evidence in support of his claim. This evidence was accompanied by a waiver of review by the agency of original jurisdiction; as such, there is no prejudice in the Board reviewing this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Competent medical evidence of record relates the Veteran's major depressive disorder to his service-connected status post left shoulder surgery and tinnitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, service connection is warranted for major depressive disorder, as secondary to service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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. The Veteran asserts that he has major depressive disorder which is caused by his service-connected disabilities. Specifically, he has indicated that his depression is due in large part to his left shoulder pain and discomfort and insomnia caused by tinnitus. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted 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). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310(b). The Veteran's VA treatment records show that he has received intermittent mental health treatment at the Tulsa Outpatient Clinic. Throughout his treatment sessions, the Veteran complained of feelings of depression and insomnia, which he in part felt was due to worsening tinnitus. In April 2011 the Veteran attributed a large part of his depression to his tinnitus and shoulder pain. He was diagnosed with mood disorder due to tinnitus. In November 2011 the Veteran again reported that he was depressed because of tinnitus and that he had recently quit his job. The Veteran was diagnosed with mood disorder due to tinnitus. In March and May 2012 the Veteran was diagnosed with mood disorder due to generalized medical conditions. The Veteran was afforded a VA psychiatric examination in May 2010. The examiner found that the Veteran had major depressive disorder, but opined that it was less likely than not related to his service-connected disabilities because there was not a clear temporal relationship between the onset of those disabilities and the onset of his depression. The Veteran has also submitted January 2010 and January 2012 letters from a private psychologist regarding his major depressive disorder. The psychologist had performed an in-person examination of the Veteran and discussed his reported medical history and symptoms. He stated that the Veteran was "distressed over constant ringing in both ears" and that his distraction as well and his shoulder pain interfered with his ability to sleep. He reported that the Veteran was "chronically fatigued and irritable" and that he had lost his job due to memory problems. The psychologist diagnosed the Veteran with chronic severe depression secondary to his service-connected medical problems. Considering the pertinent evidence above, and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for major depressive disorder is warranted. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may not, however, reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). In this case, the Veteran's private psychologist has submitted competent and probative evidence indicating that he has a current diagnosis of major depressive disorder which is caused by service-connected disabilities. He has provided ample explanation of his findings by describing how the Veteran's feelings of pain and fatigue due to sleeplessness caused by tinnitus have caused or at least aggravated his major depressive disorder. While there is no indication that he had access to the Veteran's claims file or complete medical records, the psychologist's letters appear to be based on an accurate understanding of the Veteran's past history, as relayed by the Veteran himself. The Board notes that review of the claims file is not fatal to a determination of the probative value of a medical examination when the examiner has access to a full and accurate history from another source. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Although the May 2010 VA examiner came to a differing opinion regarding the etiology of the Veteran's depression, the January 2010 and January 2012 private psychologist's opinions provide sufficient competent medical evidence favoring the existence of a medical nexus between the Veteran's major depressive disorder and his service-connected status post left shoulder surgery and tinnitus. As such, the medical evidence regarding the relationship of the Veteran's current disability and his service-connected disabilities is at least in equipoise, and entitlement to service connection is warranted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for major depressive disorder, to include as secondary to service-connected disabilities, is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs