Citation Nr: 18145692 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-31 062 DATE: October 29, 2018 ORDER 1. Entitlement to service connection for anxiety, to include as secondary to service-connected scars, disfiguring, frontal parietal area, skull, is denied. 2. Entitlement to service connection for depression, to include as secondary to service-connected scars, disfiguring, frontal parietal area, skull, is denied. REMANDED 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT The Veteran is not shown to have a diagnosis of an acquired psychiatric disability, to include anxiety and/or depression. CONCLUSIONS OF LAW Service connection for anxiety and/or depression, to include as secondary to service-connected scars, disfiguring, frontal parietal area, skull, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1965 to August 1969; from October 1 to November 30, 1990; and from March 1 to July 9, 1991, and had additional National Guard service. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of secondary service connection, there must be evidence of: a disability for which service connection is sought, an already service connected disability, and that the already service-connected disability caused or aggravated the disability for which secondary service connection is sought. 38 C.F.R. § 3.310. Lay evidence may be competent evidence to establish in-service incurrence of an observable medical condition, injury, or event. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for anxiety, to include as secondary to service-connected scars, disfiguring, frontal parietal area, skull, is denied. 2. Entitlement to service connection for depression, to include as secondary to service-connected scars, disfiguring, frontal parietal area, skull, is denied. The Veteran contends that he has anxiety and depression due to his service-connected disfiguring scars of the frontal parietal area of his skull, which are rated 30 percent. His STRs are silent for any complaint, finding, treatment, or diagnosis of a psychiatric disability. On August 1969 service separation examination, psychiatric clinical evaluation was normal. On March 1986 National Guard periodic examination, psychiatric clinical evaluation was normal; in a contemporaneous report of medical history, the Veteran denied any history of depression or excessive worry or nervous trouble of any sort. On March 1990 periodic examination, psychiatric clinical evaluation was normal; in a contemporaneous report of medical history, he denied any history of depression or excessive worry or nervous trouble of any sort. In a February 2012 statement, the Veteran stated that he had never had any formal psychiatric treatment for his anxiety or depression, but believes he has suffered both due to his disfiguring scar, which he contends created emotional stress in his life. He stated that he was raised in a time when men were discouraged to display emotions and he handled the situation on his own. On June 2013 VA mental disorders examination, the Veteran reported being married and having good relationships with his wife, children, and stepchildren. He reported that he enjoyed several activities and he had friends. He had worked for the post office for 15 years after service, and then as a courier for package delivery for 21 years before retiring in 2011. There was no relevant mental health history pre-military, during service, or postservice. No symptoms attributable to a mental disorder were reported. Following a mental status examination, the examiner opined that the Veteran did not now have nor had he ever been diagnosed with a mental disorder. The examiner opined that the Veteran does not meet the criteria for depression nor for any other DSM-IV diagnosis, and his history does not indicate any time during which he would have met criteria for a DSM-IV diagnosis regardless of cause. The threshold requirement here (as in any claim seeking service connection, direct or secondary) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, here a chronic acquired psychiatric disability, to include anxiety and/or depression. See 38 U.S.C. § 1110. The preponderance of the evidence is against a finding that he has had such disability at any time during the pendency of the instant claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The diagnosis of a mental health disability is a medical question; it requires medical expertise. The record does not show a diagnosis of a chronic acquired psychiatric disability. On June 2013 VA psychiatric evaluation in connection with this claim, a mental health professional found that the Veteran does not have (and never had) a diagnosis of an Axis I psychiatric disability. The opinion reflects familiarity with the Veteran’s history, and cites to clinical findings, to the DSM criteria needed to establish a psychiatric diagnosis. It is the only probative (medical) evidence of record in this matter, and is persuasive. The Board notes that the Veteran has indicated he has not sought mental health treatment (so there is no pertinent evidence that is outstanding). While the Veteran is competent to observe that he has had mental health complaints or symptoms in the past, the diagnosis of a psychiatric disability is a medical question. He is a layperson and does not point to factual data or a medical opinion that support that he has a diagnosis of an acquired psychiatric disability. Accordingly, the Board finds that he has not presented valid claims of service connection for anxiety and/or depression (See Brammer v. Derwinski, 3 Vet. App. 223 (1992)), and that the appeal in these matters must be denied. (The Veteran is advised that future evidence that he has a diagnosis of an acquired psychiatric disability may present a basis for reopening these claims.) REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for tinnitus is remanded. On March 2013 VA examination, the examiner opined that, since there are no frequency specific hearing levels at separation in 1969, based on the Veteran’s history of in-service and post-service noise exposure, it is not possible to determine if the [current] hearing loss is related to in-service noise exposure without resort to mere speculation. Regarding tinnitus, the examiner opined that, since there is no documentation of tinnitus in the Veteran’s service treatment records, based on his history of in-service and post-service noise exposure, it is not possible to determine if the tinnitus is related to in-service noise exposure without resorting to mere speculation. Under governing caselaw, that a hearing loss disability was not found at separation from service is not fatal to a claim of service connection for such disability. Because the March 2013 VA examiner offered what is in essence a non-opinion regarding the etiology of the Veteran’s hearing loss and tinnitus, another examination to obtain an adequate opinion in these matters is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Notably, the rationale for the non-opinion cited only the 1969 separation examination and did not address whether the Veteran’s current hearing loss and/or tinnitus was incurred in, or aggravated by, his later periods of active duty service in 1990 and 1991. Corrective action is necessary. The matters are REMANDED for the following: Forward the Veteran’s claims file to an audiologist or otologist for review and an advisory medical opinion regarding the likely etiology of his bilateral hearing loss and tinnitus (specifically whether each is related to/was incurred in his service, including as due to exposure to noise therein). The consulting provider should offer opinions that respond to the following: a) Identify the likely etiology for the Veteran’s bilateral hearing loss disability. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to his reported exposure to noise in service? b) If the hearing loss is determined to be unrelated to service, identify the etiology for the hearing loss considered more likely (and explain why that is so). c) Identify the likely etiology for the Veteran’s tinnitus. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to his reported exposure to noise in service? d) If the tinnitus is determined to be unrelated to service, identify the etiology for the tinnitus considered more likely (and explain why that is so). Include rationale with all opinions. The rationale must reflect consideration of the Veteran’s reports of continuous manifestations of hearing loss and tinnitus since service. The opinions must reflect consideration of all of the Veteran’s periods of active duty service, to include all Federalized National Guard service. If an opinion sought cannot be offered without resort to mere speculation, the examiner must explain whether the need to speculate is due to insufficiency of the evidence, lack of expertise of the examiner, or the current state of medical knowledge. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel