Citation Nr: 1629811 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 11-11 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to service-connected hearing loss and tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from August 1978 to October 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In October 2012, the Veteran testified at a hearing a Decision Review Officer at the RO. A transcript of the hearing is of record. In June 2013, the Board remanded the instant matter so as to afford the Veteran his requested Board hearing. Thereafter, in April 2014, the Veteran testified at a Board hearing before a Veterans Law Judge sitting at the RO. A transcript of such hearing is also of record. In March 2015, the Board remanded the instant matter for additional development and it now returns for final appellate review. In a letter dated in April 2016, the Board notified the Veteran that the judge that had presided over his April 2014 hearing was currently unavailable to review the claim, and offered the Veteran an opportunity for a new Board hearing, which the Veteran declined. See April 2016 response from Veteran. The Board notes that additional evidence was submitted after the issuance of the October 2015 Supplemental Statement of the Case without a waiver of Agency of Original Jurisdiction (AOJ). Additionally, the Board observes that some of the newly received documents appear to be in Spanish and have not been translated. However, as the Board herein grants the Veteran's claim in full, there is no prejudice to him in the Board proceeding with a decision at this time. As noted in the Board's March 2015 remand, the issue of entitlement to a total disability rating based on individual unemployability was raised by the record in an April 2014 statement. As such had not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board referred the matter to the AOJ for appropriate action. However, to date, it does not appear that such claim has been addressed. Therefore, the Board again refers it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDING OF FACT Resolving all doubt in his favor, the Veteran's acquired psychiatric disorder, diagnosed as depressive disorder and anxiety, is causally related to his service-connected hearing loss and tinnitus. CONCLUSION OF LAW The criteria for service connection for depressive disorder and anxiety secondary to service-connected hearing loss and tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for depressive disorder and anxiety herein constitutes a complete grant of benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations with respect to this claim. Under applicable law, service connection is warranted if the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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). The Veteran seeks service connection for an acquired psychiatric disorder, to include as due to his service-connected hearing loss and tinnitus disabilities. He particularly states that he has difficulty sleeping and concentrating due to the constant ringing in his ears, and that it is driving him crazy. Service treatment records, which confirm that the Veteran was profiled for hearing loss during service, do not include any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder. However, VA medical records dated in June 1988 describe the Veteran as complaining of lethargy, inability to sleep well, and a strange feeling in his chest, and the Veteran has had a clinical diagnosis of depressive disorder not otherwise specified since June 2010. With regard to the etiology of his claimed acquired psychiatric disorder, in June 2010, the Veteran was afforded a VA psychiatric examination. During that examination, he complained of depressed mood, trouble sleeping, irritability, lack of motivation, and forgetfulness on a daily basis, which he said started more than ten years ago when his hearing got worse. The diagnosis was alcohol abuse and depressive disorder not otherwise specified, which the examiner clarified were "two separate and distinct entities with no relation to one another." The examiner, a psychiatrist, then averred that the Veteran's depressive disorder was not related to service or a service-connected disability because the Veteran "has not [sought] psychiatric care." The same examiner provided an addendum opinion in August 2015 that the Veteran's depressive disorder did not have its onset during service, was not related to service, and was not caused or aggravated by his service-connected hearing loss and/or tinnitus. In support of such opinion, the examiner noted that, while the Veteran received anger management therapy, most probably due to his use of alcohol, in 2003, he did not seek psychiatric care in 2010, twenty-two years after his military discharge. She further discussed the Veteran's alcohol use over time and ultimately found that the Veteran's neuropsychiatric condition bears no relationship whatsoever with his military service and that the use of alcohol is a significant component in Veteran's psychosocial functioning. However, as previously stated, the Veteran actually sought help for psychiatric symptoms (lethargy, difficulty sleeping and non-cardiac chest pain) as far back as 1988, so the June 2010 and August 2015 addendum opinions are based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). Furthermore, such opinions do not adequately address the question of whether the Veteran's bilateral hearing loss and tinnitus caused or aggravated his diagnosed depressive disorder as the rationale appears to focus solely on the length of time between service and treatment. Finally, the Veteran has described psychiatric symptomatology stemming from the time of his service discharge. In this regard, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Therefore, for these reasons, the Board accords no probative weight to the VA examiner's opinions. In contrast, in a letter dated in September 2009 a private treating physician averred that the Veteran's emotional problems, including episodes of excessive anxiety and worry, restlessness, easy fatigue and muscle tension, difficulty concentrating, irritability, chest oppression, palpitations and shortness of breath, depressed mood with changes in sleep patterns, and marked decreased interest and pleasure in most of his usual activities, began shortly after his discharge from service. She noted that the Veteran is most bothered by his constant tinnitus/ringing noise, which intensifies amidst heavy noises and at night, and makes it difficult for the Veteran to understand people. She explained that this makes the Veteran very irritable and anxious to the point of wanting to hurt himself, and is so irritating that he is of bad humor all day, leading to problems with neighbors and coworkers. She added as follows: As we know prolonged exposure to noises of high intensity causes permanent damage in the inner structures of the ear, resulting in irreversible hearing loss. [The Veteran] was exposed to high frequency artillery noises at service. He started with his hearing problems and tinnitus when he was at service and his emotional problems started soon after he left service, all due to the anxiety it caused. This physician concluded that the Veteran should be evaluated as "it is more probable than not that his hearing loss problem and tinnitus is service connected and has aggravated, and in consequence he now presents anxiety and depression." Additionally, in October 2010, the Veteran's VA treating psychiatrist averred that the Veteran presented with a history of tinnitus and hearing loss, "worsening in the last few years and affecting his daily life." He further noted that the Veteran developed depression with moderate neurovegetative symptoms and anxiety related to the condition. The Board finds this pronouncement, made by a psychiatrist with unassailable assess to the Veteran's entire military and medical history, to be highly probative evidence in support of the claim. Furthermore, VA psychiatric treatment records dating from October 2010 to the present show a diagnosis of major depressive disorder related to general medical condition, and anxiety disorder related to his general medical condition. In this regard, the Board notes that the Veteran's general medical condition obviously includes his service-connected hearing loss and tinnitus. Based on this evidence, the Veteran's depressive disorder and anxiety disorder is due, at least in part, to his service-connected hearing loss and tinnitus. Moreover, in June 2012 another VA examiner (an audiologist) averred that the Veteran's tinnitus was causing difficulty resting, falling sleeping, and concentrating, and in November 2015, the Veteran's long-time VA treating psychiatrist again stated that the Veteran had a depressed mood and anxiety worsening to his hearing loss and tinnitus. See also February 2016 letter from this same psychiatrist. Therefore, based on the foregoing, the Board resolves all doubt in the Veteran's favor and finds that his acquired psychiatric disorder, diagnosed as depressive disorder and anxiety, is causally related to his service-connected hearing loss and tinnitus. Consequently, service connection for such disorder is warranted. ORDER Service connection for depressive disorder and anxiety is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs