Citation Nr: 1410209 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-07 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for Meniere's syndrome, to include as secondary to tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder not otherwise specified, to include as secondary to tinnitus or Meniere's syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's wife, Dr. M.B., and R.M. ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1972, and December 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010, February 2011, December 2011, and June 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In its December 2011 and June 2012 rating decisions, the RO denied the Veteran's claims of service connection for a mental condition as secondary to tinnitus and/or Meniere's syndrome. See also September 2011 claim; May 2012 claim. The Veteran's VA treatment records include diagnoses of a mood disorder due to a medical condition, depression due to a medical condition, depressive disorder not otherwise specified (NOS), and posttraumatic stress disorder (PTSD). The U.S. Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's VA treatment records indicate the diagnoses of a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS may reasonably be encompassed by the claimant's description of the claim. See also September 2011 claim; May 2012 claim. However, neither the Veteran nor his medical providers have related the PTSD diagnosis or symptoms to either his Meniere's syndrome or tinnitus. Thus, the Board has recharacterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS, to include as secondary to tinnitus or Meniere's syndrome. The Veteran, the Veteran's wife, Dr. M.B., and R.M. testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2013. A transcript of the hearing is contained in the Virtual VA paperless claims processing system. Other documents contained in the Virtual VA paperless claims processing system include a February 2011 rating decision, VA treatment records from the Nebraska-Western Iowa Health Care System, Omaha Division, dated February 2011 to March 2012, and VA treatment records from the Norfolk Community Based Outpatient Clinic (CBOC) dated September 2011 to April 2013. Other documents contained in Virtual VA are not relevant to the issues currently before the Board, or are duplicative of the evidence of record. The Veterans Benefits Management System does not include any relevant documents. The issues of entitlement to service connection for PTSD, and a claim to reopen entitlement to service connection for bilateral hearing loss have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See October 2013 Travel Board hearing testimony; December 2012 VA Psychology Note. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's current Meniere's syndrome is related to his military service. 2. It is more likely than not that the Veteran has an acquired psychiatric disorder caused by or a result of his Meniere's syndrome. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, service connection for Meniere's syndrome is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Service connection for an acquired psychiatric disorder, diagnosed as depression due to a medical condition, depressive disorder NOS, and a mood disorder due to a medical condition, as secondary to the Veteran's service-connected Meniere's syndrome is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability which is proximately due to or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Meniere's Syndrome The first element under Shedden for establishing direct service connection is satisfied, as a current diagnosis of Meniere's syndrome is of record. See, e.g., October 2010 VA ENT Clinic Note. The second element under Shedden is also satisfied. During service, the Veteran's military occupational specialty was an Infantry Indirect Fire Crewman. See DD 214. As such, the Veteran was exposed to noise during service. See, e.g., August 2009 VA audiology examination report (Veteran reported military exposure to noise from rifles, pistols, machine guns, mortars, artillery, grenades, grenade launchers, rocket launchers, heavy moving equipment, and mines). As to the third element under Shedden, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, there is an approximate balance of positive and negative evidence. Upon VA examination in January 2011, the examining physician noted that the Veteran was "exposed to a significant amount of noise," and opined that the Veteran's "extensive history of noise exposure certainly is the likely cause of [his] tinnitus." The examiner further opined, "Because the [Veteran] does not note symptoms beginning until July 2010, the Meniere's syndrome is not caused by or a result of his service-connected tinnitus or physiologic/anatomic changes during his active duty service." In a February 2012 letter, the Veteran's VA primary care provider, C.M., a board-certified advanced practice registered nurse (APRN-BC), opined that the "pathologic lesion of [M]eniere's disease is termed endolymphatic hyrodrops [sic] and per [the] '[U]p to Date' reference one cause is acoustic trauma as [the Veteran] experienced while serving in the military." In October 2013, the Board received a copy of C.M.'s February 2012 letter co-signed by Dr. R.N., a physician at the VA Norfolk CBOC. See October 2013 Travel Board hearing testimony at 4. The February 2012 letter opinion by the VA APRN-BC, C.M., and as endorsed by a VA physician, Dr. R.N., is supportive of the Veteran's claim. The February 2012 letter opinion is based upon the Veteran's history of acoustic trauma during active duty, and the rationale that acoustic trauma can cause endolymphatic hydrops, a pathologic lesion of Meniere's syndrome, is supported by medical literature. The January 2011 VA examiner's negative nexus opinion is based solely on the absence of reported symptoms of Meniere's syndrome, other than tinnitus, for years after the Veteran's service. However, the January 2011 VA examiner also noted the Veteran's noise exposure during active duty service, although he did not opine as to acoustic trauma as a potential cause of Meniere's syndrome. As the evidence for and the evidence against the Veteran's claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is medical evidence of record establishing a link between the Veteran's current Meniere's syndrome and his military service. Accordingly, the Board finds that a grant of service connection is warranted for Meniere's syndrome. Acquired Psychiatric Disorder The first element under Wallin for establishing secondary service connection is satisfied, as there is evidence of a current disability. The Veteran's VA treatment records include diagnoses of a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS. See June 2011 Psychology Consult; June 2012 Primary Care Clinic Note; July 2012 MHC Clinic Note. The second element under Wallin is also satisfied, as per this decision of the Board, service connection for Meniere's syndrome has been established. The third element under Wallin, a nexus between the service-connected disability and the current disability, is also satisfied. In her June 2011 VA Psychological Consult, the Veteran's treating psychologist, Dr. P.H., noted the Veteran cited frustration related to his ongoing Meniere's symptoms, and his report that "since he was diagnosed with Meniere's disease, he has had a significant change in personality, is more irritabl[e], constantly angry, has difficulties with being judgemental [sic] of others, is experiencing a greater tendency to speak his mind, isolates more, and has lost interest in previously enjoyed activities." Dr. P.H. made an Axis I diagnosis of "Depression due to general medical condition: Meniere's Disease." In September 2011, the RO received a letter from Dr. P.H. stating, "The focus of [the Veteran's] treatment is to address his diagnosis of 'Depression due to general medical condition' which, in my professional clinical opinion, is related to his tinnitus as well as his Meniere's Disease." Subsequent treatment notes by Dr. P.H. also relate the Veteran's acquired psychiatric disorders to his now service-connected Meniere's syndrome. For example, in an October 2011 treatment note, Dr. P.H. states as one of the Veteran's long-term goals, "Veteran will develop and implement skills necessary for independent maintenance of symptoms of depression, address adjustment issues related to medical disease, and manage associated anger." After a review of the evidence of record as a whole, and resolving any doubt in the Veteran's favor, the Board finds that there is a nexus between the service-connected Meniere's syndrome and the Veteran's current acquired psychiatric disorder, diagnosed as a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS. Accordingly, the Board finds that a grant of service connection is warranted for an acquired psychiatric disorder, diagnosed as a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS. ORDER Entitlement to service connection for Meniere's syndrome is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as a mood disorder due to a medical condition, depression due to a general medical condition, and depressive disorder NOS, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs