Citation Nr: 18144504 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-05 221 DATE: October 25, 2018 REMANDED Service connection for an acquired psychiatric disorder is remanded. Service connection for sleep apnea is remanded. Service connection for headaches is remanded. Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for a back disorder is remanded. Service connection for a right leg disorder is remanded. Service connection for a left leg disorder is remanded. Service connection for kidney cancer due to contaminated water at Camp Lejeune is remanded. Service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran had active military service from June 1974 to June 1976. The Veteran initially filed a claim for service connection for PTSD. However, medical records show diagnoses of a depressive disorder and his attorney’s recent argument primarily addressed service connection for depression. Accordingly, the claim has been broadened to encompass any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Service connection for an acquired psychiatric disorder is remanded. The Veteran initially filed a claim for service connection for PTSD but he was subsequently diagnosed with an unspecified depressive disorder in November 2015 by a private psychologist, who related his depression to service. The psychologist relied on buddy statements, which alleged the Veteran’s personality changed after service, and “a body of literature” that related military service to depression. The research she referenced found that active duty military personnel became disillusioned with their personal identities “as a result of the chronic guilt and shame associated with their service identities.” She then concluded that he suffered from an unspecified depressive disorder that more likely than not began in service. The Board finds that this medical opinion is insufficient basis upon which to grant a claim of service connection. While the “body of literature” generally relates depression to military service, it is unclear that it is relevant in this case. The psychologist did not specify what kind of veterans the literature studied, i.e. combat or non-combat veterans, and the reason these veterans experienced “chronic guilt and shame associated with their service identities.” Further, the evidence does not show that the Veteran separated with mental health issues or experienced a significant event in service that would trigger feelings of “chronic guilt and shame” or mental health symptoms. Importantly, the psychologist does not provide a rationale for her conclusion that his depression began in service despite the normal service records, lack of significant events, and lack of testimony that his symptoms began in service. Additionally, a September 2012 mental health report documented that the Veteran reported his life “fell apart” after his brother died and he quit going to a pain clinic in 2004 and that he was a “markedly impaired historian.” The psychologist’s opinion does not account for these significant facts. The Board thus finds that a remand is necessary to obtain VA examination and medical opinion to assess the nature and etiology of the Veteran’s mental health issues. Moreover, during a 2012 mental health visit, the Veteran reported that he had seen a therapist at an “outpatient VA clinic in Jasper for years.” The Statement of the Case identified evidence considered as including treatment records from the VA Medical Center in Birmingham dated from February 15, 2008, to December 21, 2015, but the earliest records associated with the claims file are from September 2012. Similarly, the private February 2016 private mental health examination report documents that the Veteran “began receiving SSDI in 1994 for his difficulties,” but these records are not associated with the claims file. Accordingly, a remand is necessary to obtain any outstanding records that may corroborate the Veteran’s claims. 2. Service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is secondary to his mental health disorder, and provided a supporting private medical opinion. The Board thus finds that the issue must be remanded as inextricably-intertwined with the remanded issue of service connection for an acquired psychiatric disorder, as well as for a VA medical opinion, if appropriate. 3. Service connection for headaches is remanded. The Veteran contends that his headaches are secondary to his mental health disorder, and provided a supporting private medical opinion. The Board thus finds that the issue must be remanded as inextricably-intertwined with the remanded issue of service connection for an acquired psychiatric disorder, as well as for a VA medical opinion, if appropriate. 4. Service connection for bilateral hearing loss is remanded. Upon entrance into service, the Veteran’s right ear pure tone thresholds were: 15 (500 Hertz); 10 (1000 Hertz); 5 (2000 Hertz); untested (3000 Hertz); and 55 (4000 Hertz). He underwent a second evaluation in October 1974, which showed the following right ear pure tone thresholds: 10 (500 Hertz); 5 (1000 Hertz); 10 (2000 Hertz); 25 (3000 Hertz); and 40 (4000 Hertz). At separation, in May 1976, his right ear pure tone thresholds were: 15 (500 Hertz); 15 (1000 Hertz); 20 (2000 Hertz); 40 (3000 Hertz); and 60 (4000 Hertz). The Veteran was afforded a VA audiological examination in October 2014, and the examiner concluded that the Veteran’s right ear hearing loss was not aggravated in service because there was no significant change in hearing thresholds from entrance to separation. The examiner did not consider the October 1974 thresholds, however, and a remand is necessary for an addendum medical opinion as to whether the difference between the October 1974 thresholds and separation thresholds represent a significant change. Furthermore, the VA examiner concluded that the Veteran’s left ear hearing loss preexisted service and was not aggravated during service. The Veteran’s left ear hearing thresholds at entrance into service were as follows: 25 (500 Hertz); 15 (1000 Hertz); 15 (2000 Hertz); untested (3000 Hertz); and 35 (4000 Hertz). These thresholds do not constitute a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385. As the Veteran did not have preexisting left ear hearing loss at service entrance, a remand is necessary to obtain an addendum medical opinion that is based on the correct factual history. 5. Service connection for tinnitus is remanded. The October 2014 VA examiner concluded that tinnitus was unrelated to service in part because there was no significant change in hearing thresholds in service. As the issues of service connection for right ear and left ear hearing loss are being remanded for addendum opinions that address that issue, the claim of service connection for tinnitus must also be remanded. 6. Service connection for a back disorder, right leg disorder, and left leg disorder is remanded. Post-service medical records show that the Veteran has reportedly undergone treatment for back and lower extremity conditions since the early 1990s. Specifically, at a December 2012 VA treatment visit, the Veteran reported that he injured his left knee while working in a lumber yard, which required multiple surgeries. The record also noted a history of right lower leg surgery. Additionally, at a March 2014 chronic pain consultation, the Veteran reported that he has experienced chronic back pain for many years and was treated with lumbar epidural steroid injections from the 1990s to 2004. These records are not associated with the claims file and an attempt to obtain them has not been made. The issues must therefore be remanded to obtain these records, as well as the outstanding VA and SSA medical records. 7. Service connection for kidney cancer due to contaminated water at Camp Lejeune is remanded. The issue of service connection for kidney cancer must be remanded to obtain outstanding VA and SSA medical records and attempt to obtain other outstanding records regarding his kidney cancer treatment. 8. Service connection for erectile dysfunction is remanded. The issue of erectile dysfunction secondary to kidney cancer must be remanded as inextricably-intertwined with the issue of service connection for kidney cancer. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment he has undergone for his back disorder, to include lumbar epidural steroid injections, bilateral leg disorder, to include knee surgery, and kidney cancer since separation from service. He has reported treatment since the 1990s as well as various surgical procedures, but none of these private records are in his VA file. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s disability records from the Social Security Administration. He reports receiving SSDI benefits since the 1990s. 3. Obtain the Veteran’s VA records from Birmingham VAMC (to include the Jasper Clinic) from February 15, 2008 to September 2012 and from October 2014 to the present, and associate these records with the claims file. 4. DO NOT PROCEED WITH THE FOLLOWING examinations until all the above VA, private, and SSA records have been obtained, to the extent possible. 5. Schedule the Veteran for a VA psychiatric examination to assess the nature and etiology of his mental health disorder(s). After review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s mental health disorder(s) began in or was otherwise caused by service? (b.) Is it at least as likely as not that the Veteran’s mental health disorder is caused by his tinnitus? (c.) Is it at least as likely as not that the Veteran’s mental health disorder is aggravated by his tinnitus? The examiner should consider the supporting buddy statements submitted in February 2016, the private February 2016 mental health examination, the private addendum opinion submitted in August 2018, and the article submitted in August 2018 linking tinnitus and depression. 6. If, and only if, the examiner concludes that there is a positive nexus between service and any diagnosed mental health disorder(s), forward the claims file to an appropriate provider to address the relationship, if any, between the Veteran’s mental health disorder(s) and sleep apnea. An in-person examination is unnecessary unless determined otherwise by the examiner. The examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s mental health disorder(s) caused his sleep apnea? (b.) Is it at least as likely as not that the Veteran’s mental health disorder(s) aggravates his sleep apnea? The examiner must address the private sleep examination and medical opinion submitted in August 2018. 7. If, and only if, the examiner concludes that there is a positive nexus between service and the diagnosed mental health disorder, forward the claims file to an appropriate provider to address the relationship, if any, between the Veteran’s mental health disorder and headache disorder. An in-person examination is unnecessary unless determined otherwise by the examiner. The examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s mental health disorder(s) caused his headache disorder? (b.) Is it at least as likely as not that the Veteran’s mental health disorder(s) aggravates his headache disorder? The examiner must address the private headache examination and medical opinion submitted in August 2018 and the articles linking depression and headaches submitted in August 2018. 8. Forward the claims file to the October 2014 VA audiologist who completed the October 2014 examination, or another appropriate examiner if she is unavailable, for an addendum medical opinion regarding the Veteran’s claims for service connection for hearing loss. An in-person examination is unnecessary unless determined otherwise by the examiner. The examiner should respond to the following: (a.) Was there a significant change in hearing thresholds for his right ear and/or his left ear in service? The examiner must consider the October 1974 auditory thresholds, which appear on page 15 of the service treatment records. (b.) Is it at least as likely as not that the Veteran’s preexisting right ear hearing loss was permanently aggravated in service? (c.) Is it at least as likely as not that the Veteran’s left ear hearing loss, which did not preexist service, began in service or is otherwise related to service? (d.) Is it at least as likely as not that the Veteran’s tinnitus began in service? (e.) Is it at least as likely as not that the Veteran’s tinnitus was caused by his right ear and/or left ear hearing loss? MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel