Citation Nr: 1415062 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 11-02 757A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for depression as secondary to a left shoulder disability. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. The Veteran appeared before the undersigned Veterans Law Judge at a Video Conference hearing in August 2012; a transcript of which is of record. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss as defined by VA. 2. Affording the Veteran the benefit of the doubt, the satisfactory lay and medical evidence of record demonstrates that the Veteran's depression is related to his service connected left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). 2. The criteria for service connection for depression as secondary to a left shoulder disability have been approximated. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). To the extent the Board grants entitlement to service connection for depression, further discussion of the VCAA is not required with respect to that issue. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA advised the Veteran in March 2010 of information as to the evidence required to substantiate the depression claim, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained the type of information and evidence needed to establish a disability rating and effective date. VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, and the Veteran's statements. The Board has carefully reviewed such documents and concludes that no available outstanding evidence has been identified. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran was afforded a VA examination for hearing loss. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the Veteran's hearing loss. VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Depression The Veteran asserts that his depression is due to the chronic pain he experiences as a result of his service connected left shoulder disability. The evidence of record is in equipoise concerning the etiology of the Veteran's depression, thus the claim must be granted. Service treatment records are silent for any complaints or treatment for depression. Post-service treatment records are silent for complaints or treatment for depression until the Veteran underwent a VA examination in May 2010 where he reported taking antidepressants on and off since 1985. During the May 2010 VA examination the Veteran reported that he had been feeling more and more depressed as his physical condition worsened. The Veteran reported taking citalopram and trazadone to treat his depression. The VA examiner diagnosed the Veteran with "major depression secondary to medical condition, alcohol abuse." However, the physician noted that the Veteran was then having two to four drinks per day. Dr. T.H. noted, "Vet has long history of depression since" active service. The Veteran underwent a second VA examination in September 2010. During this examination the Veteran reported his depression began in 1985 as a result of being injured while in the Navy. The Veteran described feeling isolated, short-tempered, apathetic, sad, hopeless, and depressed. The severity of the symptoms were noted as moderate. The Veteran reported the continued use of citalopram with good responses and no side effects. The examiner recorded the Veteran's history of binge drinking starting at age 13. The examiner also noted the Veteran is still abusing alcohol. The VA examiner diagnosed the Veteran with depression and mood disorder related to alcohol abuse. The September 2010 examiner opined that the Veteran's depression "is not service related because there is evidence in the medical record explaining the non-relationship. The explanation is because of his alcoholism." During his August 2012, hearing the Veteran testified that he was diagnosed with depression after he came home from the Navy and his mother, a psychologist suggested he see a doctor. The Veteran stated he began taking medication at that time. He also testified that the September 2010 VA examiner misconstrued his alcohol use and that he does not abuse alcohol presently but did as a young man in the Navy "sowing wild oats." After a careful review of the medical and satisfactory lay evidence set forth above, the Board has determined that the Veteran's depression is related to his service connected left shoulder disability. As noted above, the Veteran's left shoulder injury is service connected. Both VA examiners diagnosed the Veteran with depression and note the Veteran's account that his symptoms began after discharge in 1985. Although both examiners are qualified medical professionals, competent to provide an opinion as to the etiology of the Veteran's depression, the Board assigns greater probative value to the May 2010 VA examiner's opinion. In analysis of cases involving multiple medical opinions, each medical opinion should be examined, analyzed, and discussed for corroborative value with other evidence of record. Wray v. Brown, 7 Vet.App. 488 (1995). The Board finds that the September 2010 examiner's opinion is not supported by the record. While the examiner opined the Veteran's depression is due to alcohol abuse, the claims file does not contain a history of alcohol abuse other than during service as conceded by the Veteran, and with no apparently current alcohol abuse. Post service treatment records show the Veteran was evaluated and showed negative results for alcohol abuse in November 2004. On the contrary, the claims file does show a pattern of complaints of worsening left shoulder pain. This evidence supports the opinion rendered by the May 2010 examiner and the Veteran's lay assertion that his depression has increased due to his pain. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for depression is warranted. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). Hearing Loss The Veteran contends that he has right ear hearing loss as a result of exposure to acoustic trauma during service. The Veteran claims that the headphones he wore while serving as a Radioman in the Navy, amplified the noise around him directly into his ears. Although the Veteran's military service may have exposed him to acoustic trauma as he has described, he does not have right ear hearing loss for VA purposes, and the claim will therefore be denied. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) are negative for any complaints, findings, or treatment for right ear hearing loss. The Veteran underwent an audiometric evaluation at Advantage Audiology & Hearing Aids in March 2010; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The Veteran underwent a VA audiometric evaluation in September 2010; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The Veteran's own statements have also been considered. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the diagnosing of hearing loss falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran's subjective report of symptoms has been investigated by competent medical examiners and he does not have hearing loss in the right ear for VA compensation purposes under 38 C.F.R. § 3.385. For service connection to be warranted there must be a current disability resulting from an in-service condition or injury. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). Thus, the preponderance of the evidence is against the claim and it must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for depression as secondary to a left shoulder disability is granted. Service connection for right ear hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs