Citation Nr: 1801167 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-06 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a depressive disorder. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a disability manifested by muscle deterioration. 5. Entitlement to service connection for a disability manifested by joint deterioration. 6. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from September 1979 to September 1983 and from July 1987 to January 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2016, a videoconference hearing was held before the undersigned; a transcript is of record. At the hearing, the Veteran waived Agency of Original Jurisdiction (AOJ) review of any additional evidence received after the hearing, and the record was held open for 60 days; additional evidence was received in September 2016. The Board notes that the Veteran filed separate service connection claims for depression and for PTSD, and his hearing testimony suggests he would like them to be considered separately. The issues of service connection for diabetes mellitus, bilateral hearing loss, a disability manifested by muscle deterioration, a disability manifested by joint deterioration, and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence establishes a depressive disorder is related to service. CONCLUSION OF LAW Service connection for a depressive disorder is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable action taken herein, no further discussion of the VCAA is required for this claim for service connection for a depressive disorder. Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran contends he has a depressive disorder related to service. The Board notes some of the Veteran's service treatment records are unavailable. An October 1991 Report of Mental Status Examination noted the Veteran's mood or affect was unremarkable. His October 1991 Report of Medical Examination at discharge noted he was psychiatrically normal, and on his Report of Medical History he specifically denied depression or excessive worry. On March 2011 VA examination, the examiner noted the Veteran reported that during his active service, mental health treatment was recommended, and he attended one session. The examiner opined that a depressive disorder was not at least as likely as not due to service. The examiner noted the Veteran had depression onset around 1995 or 1996, and that he did not have a diagnosis or treatment for mental health conditions during his active service. The examiner also noted the Veteran's claims file was not available to review; therefore, the Board finds the opinion has little probative value. On June 2012 VA examination, the examiner noted the Veteran reported first experiencing depression symptoms in 1990. Instead of seeking treatment, he began drinking heavily. The examiner noted that it was at least as likely as not that his depressive disorder was related to his military service. During his hearing, the Veteran testified that he experienced depression symptoms during service and was treated for it once. After this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for a depressive disorder. In summary, the Veteran currently has a diagnosed depressive disorder, and his report of in-service symptoms is credible. As to the remaining element, the most probative evidence of record, the June 2012 VA examiner's opinion, supports a finding that a depressive disorder is related to service. As such, the Board grants the benefits sought. ORDER Entitlement to service connection for a depressive disorder is granted, subject to the law and regulations governing the payment of monetary benefits.. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. The Veteran contends his diabetes is related to exposure to chemicals while serving in the Southwest theater of operations during the Persian Gulf War. On an April 2011 VA general medical examination, the examiner noted the Veteran reported that his diabetes was diagnosed in 1994, but an etiological opinion was not provided. A June 2012 addendum noted the examiner found a diabetes onset of March 1997 in the medical records, and that he found no medical or scientific literature showing a link between environmental exposure in Southwest Asia and diabetes, nor did he find evidence of exposure in the claims file. The Board finds this opinion inadequate as it is general in nature and does not offer a clear rationale as to the Veteran's contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a new opinion is needed on remand. As this same opinion and rationale was used for the Veteran's muscle and joint deterioration, and also suggested a correlation with diabetes and depression, new opinions are needed for those claims, as well. Id. A March 2011 VA audio examination did not find bilateral hearing loss for VA purposes, but the Veteran testified to worsened symptoms since then. Therefore, a new VA examination is needed to determine whether the Veteran now has bilateral hearing loss due to service. On May 2013 VA PTSD examination, the examiner noted the Veteran did not have any valid PTSD stressors. However, since then the Veteran has submitted several statements suggesting possible fear of hostile military or terrorist activity while serving in Southwest Asia during the Gulf War. Therefore, a new VA examination is needed to determine whether the Veteran has a diagnosis of PTSD due to service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the issues on appeal. 2. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of his diabetes mellitus, type II. Based on the record, the examiner should provide a response to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's diabetes mellitus, type II is related to the Veteran's service? It is requested that the rationale include some discussion of the Veteran's conceded exposure to environmental hazards in the Persian Gulf. Detailed reasons for all opinions should be provided. 3. After completing directive (1), the AOJ should arrange for a VA audiology evaluation of the Veteran to ascertain the etiology of any bilateral hearing loss. Based on the record, the examiner should provide responses to the following: (a) Does the Veteran have current bilateral hearing loss for VA purposes? (b) If so, is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's bilateral hearing loss is attributable to the Veteran's active service, to include his previously-conceded hazardous noise exposure? Detailed reasons for all opinions should be provided. 4. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of his claimed disabilities manifested by muscle and joint deterioration. Based on the record, the examiner should provide responses to the following: (a) Identify (by diagnosis) all disabilities found related to the Veteran's claims of muscle and joint deterioration. If no diagnoses are made, indicate whether the Veteran's symptoms represent the manifestation of an undiagnosed illness. (b) If, instead of an undiagnosed illness, there is a known clinical diagnosis, offer an opinion as to whether each diagnosed disability is at least as likely as not (a 50% or higher degree of probability) related to the Veteran's service. It is requested that the rationale include some discussion of the Veteran's conceded exposure to environmental hazards in the Persian Gulf and his testimony regarding slipping and falling during service. (c) If, instead of an undiagnosed illness, there is a known clinical diagnosis, offer an opinion as to whether each diagnosed disability is at least as likely as not (a 50% or higher degree of probability) proximately due to his service-connected disabilities, specifically depression. It is requested that the rationale include some discussion of the June 2012 VA opinion that a depressive disorder would contribute to morbid obesity and excess body weight, causing complaints regarding the ankle joints. (d) If, instead of an undiagnosed illness, there is a known clinical diagnosis, offer an opinion as to whether each diagnosed disability is at least as likely as not (a 50% or higher degree of probability) aggravated by his service-connected disabilities, specifically depression Aggravation is an increase in severity beyond the natural progress of the disorder. It is requested that the rationale include some discussion of the June 2012 VA opinion that a depressive disorder would contribute to morbid obesity and excess body weight, causing complaints regarding the ankle joints. Detailed reasons for all opinions should be provided. 5. After completing directive (1), the AOJ should arrange for a VA psychiatric evaluation of the Veteran to determine the nature, extent and etiology of any PTSD. Based on the record, the examiner should provide responses to the following: (a) Does the Veteran have a current diagnosis of PTSD? (b) If so, is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's current PTSD is related to service? It is requested that the rationale for this opinion include some discussion of any self-described fear of hostile military or terrorist activity. Detailed reasons for all opinions should be provided. 6. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 7. The AOJ should then review the record and readjudicate the claims on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs