Citation Nr: 18148548 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-39 997 DATE: ORDER Entitlement to service connection for major depressive disorder (MDD) with psychotic anxious distress features claimed as secondary to service-connected tinnitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his current diagnosis of MDD with psychotic anxious distress features is etiologically related to his service-connected tinnitus. 2. The Veteran is not diagnosed with PTSD that is related to his military service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for MDD with psychotic anxious distress features are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. The criteria to establish service connection for PTSD are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1979 to 1983. This matter comes before the Board of Veterans’ Affairs (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. Entitlement to service connection for an acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are specific VA criteria to establish service connection for PTSD: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2017). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a) (2017), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders. 38 C.F.R. § 3.304 (f) (2017). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See, Layno v. Brown, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Analysis The Veteran asserts that he has a currently diagnosed psychiatric disorder that is related to his military service or alternatively related to his service-connected tinnitus. See August 2018 Brief in Support of Veteran’s Claim(s). The Board initially finds that the Veteran has a current disability of MDD with psychotic anxious distress features. In this regard, the Veteran submitted a Disability Benefits Questionnaire (DBQ), which was completed by HHG, identified as a psychologist and a health service provider of psychology in April 2018. At that time, HHG conducted a clinical interviewed of the Veteran after which she submitted a report along with a Residual Functional Capacity Evaluation Regarding the Ability to Do Work-Related Activities. Moreover, the Veteran is service-connected for tinnitus. After review of all of the evidence, both lay and medical, the Board finds that service connection for MDD secondary to service-connected tinnitus is warranted. The Veteran reported in a lay statement that his tinnitus was extremely bad caused ringing in his ear that bothered him a great deal. A “buddy statement” dated November 2017, a friend of the Veteran noted that the Veteran’s tinnitus has a tendency to affect his attitude and his ability to focus in social situations and conversations. See November 2017 Statement from Friend. During the Veteran’s April 2018 clinical interview, HHG determined that the Veteran’s service-connected tinnitus has and will likely continue to aggravate his MDD. The examiner explained that Veteran refuses to leave the house for anything other than a doctor’s appointment when the ringing is at its worst, which causes the Veteran to exhibit symptoms of hostility and depression. Using evidence-based research and the interview results, HHG concluded that this would most likely be permanent. Additionally, the Veteran submitted lay statements to his VA examiner in December 2014 and “buddy statements submitted in January 2018, describing his daily struggles with tinnitus and how they affect his MDD. The evidence notes that the Veteran’s tinnitus caused him to be depressed because he is unable to hear what is going on around him. The Board finds the lay statements submitted by the Veteran, as well as the supporting “buddy statements” to be competent, credible and of probative value to this issue. The statements include details of the Veteran’s daily symptoms as they have occurred. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. at 303. Based on HHG’s competent and probative opinion and the probative lay statements of record, the Board finds that the evidence supports the claim for service connection for major depressive disorder with psychotic anxious distress features as secondary to tinnitus. Therefore, service connection for MDD as secondary to Veteran’s service-connected tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because the Board has awarded service connection on a secondary basis, the Veteran’s remaining theory of entitlement is rendered moot. (Continued on the next page)   The Board recognizes that the Veteran initially filed a service connection claim specifically for PTSD but as reflected above, the Board expanded the claim to include any psychiatric disorder, however diagnosed. Although the Veteran’s current VA psychology records refer to a diagnosis or history of PTSD, the evidence clearly shows that the diagnosis is related to an in-home robbery that occurred in 2010, and not to the Veteran’s military service. Moreover, even after her clinical interview of the Veteran, HHG did not diagnose the Veteran with PTSD related to service. The preponderance of the evidence is against a finding that the Veteran currently has PTSD related to his active military service. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel