Citation Nr: 1800253 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-04 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and an anxiety disorder, as secondary to service-connected tinnitus. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran had active duty service from October 1980 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2014, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for depression. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and an anxiety disorder. The Board notes that, in a November 2016 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claim for service connection for headaches as well as his requests to reopen claims for service connection for asthma and sleep apnea. The Veteran filed a notice of disagreement as to the denials of these claims in December 2016. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System (VACOLS) the appeal is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current acquired psychiatric disorder was caused or aggravated by his service-connected tinnitus. Direct service connection has not been alleged. Several etiological opinions are of record; however, none of these opinions are probative. A March 2012 VA mental disorders examiner found that the Veteran's symptoms of depressed mood and periodic anxiety were subclinical, that he did not meet the DSM-IV diagnostic criteria for a psychiatric diagnosis and that tinnitus was not a sufficient casual factor for a severe psychiatric diagnosis such as depression or anxiety. A September 2010 opinion from Dr. K. L., the Veteran's former private psychiatrist, indicated that the Veteran had chronic tinnitus that impacted his psychological health and his ability to function in at least two significant life domains. A March 2017 opinion from Dr. J.E., a VA physician, indicated that the Veteran suffered from service-connected tinnitus and that it was more likely than not that his insomnia was connected to his tinnitus. However, a June 2017 VA examiner attributed the Veteran's insomnia to his to his major depressive disorder diagnosis. No rationale was provided for each of these opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). Therefore, a remand is necessary in order to obtain an addendum opinion. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records dated from April 2017 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the foregoing development, and following the receipt of any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (A) Identify all current acquired psychiatric disorder(s) that have been present at any time since March 2010. If the examiner determines that the Veteran meets the DSM-5 criteria for a diagnosis for an acquired psychiatric disorder, he or she should reconcile such findings with the findings present in the April 2016 and September 2016 VA treatment notes suggesting that the Veteran is malingering. (B) With respect to any diagnosed acquired psychiatric disorder, is it at least as likely as not that such was caused OR aggravated by his service-connected tinnitus? If aggravated, the examiner should identify that aspect of the disability which is due to such aggravation. The examiner should consider all of the evidence of record, including the Veteran's lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).