Citation Nr: 18149259 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-24 902A DATE: November 9, 2018 ORDER Entitlement to service connection for depression is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to special monthly compensation (SMC) by reason of being housebound is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s depression did not manifest in service and is not attributable to service, and was not caused or aggravated by the Veteran’s service-connected tympanic membrane rupture and vestibulitis. CONCLUSION OF LAW The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from April to June 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the VA Regional Office (RO) in Huntington, West Virginia. The Board acknowledges that the Veteran has perfected appeals with respect to the issues of entitlement to service connection for traumatic brain injury (TBI), migraine headaches, sinusitis, sleep apnea, loss of bladder control, and cataracts, and entitlement to an earlier effective date and increased rating for service-connected tympanic membrane rupture and vestibulitis. However, the Board’s review of the record reveals that the Agency of Original Jurisdiction (AOJ) has not certified those issues for consideration by the Board, and it appears the AOJ is still taking action on the issues. As such, the Board will not accept jurisdiction over these issues at this time, but those issues will be the subject of a subsequent Board decision, if otherwise in order. Entitlement to service connection for depression The Veteran has contended that his depression is related to service, or alternatively, secondary to his service-connected tympanic membrane rupture and vestibulitis. Specifically, he asserted that he became depressed when he was medically discharged from service. He stated that he was ashamed that his dream of military service was unfulfilled. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of a psychiatric disability. A review of post-service medical records reflect that the Veteran sustained occupational injuries in 2003 and complained of anxiety and depression in the context of pain that he was experiencing. He was later diagnosed with major depressive disorder and pain disorder. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In March 2016, the Veteran was afforded a VA examination. The examiner stated that the Veteran did not have a psychiatric disability. The examiner opined that it was less likely than not that the Veteran’s depression was incurred in or caused by the service. Additionally, the examiner opined that it was less likely than not that the Veteran’s depression was proximately due to or the result of the Veteran’s service-connected disability. The examiner stated that there was no record of mental health complaints during enlistment. The examiner observed that Veteran’s post-service mental health history had been in context of his worker’s compensation claim for conditions unrelated to his service. Specifically, post-service medical records associated diagnoses of depression and pain disorder with the Veteran’s back, neck, and gastrointestinal complaints. Since the adjudication of the Veteran’s worker’s compensation claim, the examiner added that the Veteran has not had any mental health treatment. Furthermore, the examiner noted that the medical providers for the worker’s compensation claim indicated a concern for symptom amplification by the Veteran. The examiner commented that the Veteran was an unreliable historian and that he failed personality testing due to an over endorsement of his symptoms, which added uncertainty to the reliability of his self-report. While a mental disorder may have been present, the examiner expressed “serious” concern for secondary gain motivations which possibly contributed to the Veteran’s exaggeration. The examiner concluded that, given those concerns, the Veteran was not given a mental disorder diagnosis as there was no reliable evidence to support a particular condition. The Board finds that the only medical opinion of record weighs against the Veteran’s claim. In this regard, the March 2016 VA examination report is highly probative here, as the examiner reviewed the evidence of record, including the Veteran’s lay statements, and relied on her own training, knowledge, and expertise as a medical professional in rendering her opinion. While the examiner’s opinion did not specifically address aggravation of a psychiatric disorder by the service-connected tympanic membrane rupture and vestibulitis, given the rationale discussed above relating depression to other disabilities, and indicating no current diagnosis, the Board concludes that remand for additional opinion regarding aggravation is not necessary. In addition, post-service medical records do not suggest that there is a relationship between the Veteran’s depression and service or his service-connected tympanic membrane rupture and vestibulitis. The Board acknowledges the lay assertions of record, including the Veteran’s sincere belief that his depression is related to service or his service-connected tympanic membrane rupture and vestibulitis. However, the Veteran is not competent to provide a nexus opinion, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the Veteran did not complain of, receive treatment for, or have a diagnosis of any psychiatric disability while in active service. There is no competent evidence of record indicating that the Veteran’s depression was directly related to his active service or secondarily related to his service-connected tympanic membrane rupture and vestibulitis. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for depression is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has contended that he has a bilateral hearing loss disability and tinnitus that is due to water getting inside his ears while learning how to swim during basic training. Specifically, he described nearly drowning in the swimming pool on his first day and that his ears were full of water after he completed training. STRs documented that the Veteran reported pain in his right ear after he went swimming during recruit training in April 1977. In June 1977, he complained of loss of hearing in his right ear and was diagnosed with otitis media and old perforation of the right tympanic membrane with scarring. A report of the medical board concluded that the Veteran had chronic right ear disease secondary to old tympanic membrane perforation, existing prior to entrance. However, the Veteran’s audiometric testing during his June 1976 enlistment examination demonstrated that he had normal hearing acuity. A review of post-service medical and Social Security Administration records did not reflect any hearing loss until February 2014. In March 2014, a private audiologist diagnosed hearing loss and found mild right mastoid air cells disease. The Veteran was afforded a VA audiological evaluation in September 2015. The examiner diagnosed tinnitus and a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. He opined that the Veteran’s hearing loss was less likely as not caused by or a result of his active service. In support of this opinion, the examiner stated that the audiological evaluation revealed bilateral severe-profound mixed hearing loss with good word recognition in the right ear and poor word recognition in the left ear. He stated that during his enlistment examination the Veteran’s hearing was within normal limits in both ears. He noted that the Veteran had a chronic ear infection in both ears following his enlistment and that the Veteran only served for a few months. He stated that there was a big air-bone gap present in both ears. The Board finds that the September 2015 VA examiner did not address the Veteran’s report that he experienced reduced hearing acuity and tinnitus due to fluid build-up in his ears. Additionally, the examiner did not explain his findings of a bilateral chronic ear infection following the Veteran’s enlistment examination and a large bilateral air-bone gap. Moreover, the examiner did not opine as to whether the Veteran’s bilateral hearing loss disability and tinnitus are secondary to his service-connected tympanic membrane rupture and vestibulitis. For these reasons, the VA medical opinion is inadequate, and remand is necessary to determine the nature and etiology of any currently present bilateral hearing loss disability and tinnitus. Regarding the SMC and TDIU issues, the Board notes that the issues of entitlement to a TDIU and SMC are inextricably intertwined with the claims remanded herein. Further, the Board finds that the issues of entitlement to service connection for a low back and neck disability are inextricably intertwined with the issue of entitlement to service connection for a TBI, as the Veteran has indicated that such may be secondary to TBI, which has not yet been certified to the Board. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claims for service connection for a low back and neck disability, SMC, and TDIU should be deferred pending final disposition of the remaining claims and AOJ action on the issues not yet certified to the Board. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present bilateral hearing loss disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bilateral hearing loss disability is etiologically related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bilateral hearing loss disability was caused or chronically worsened by the Veteran’s service-connected tympanic membrane rupture and vestibulitis. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present tinnitus. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present tinnitus is etiologically related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present tinnitus was caused or chronically worsened by the Veteran’s service-connected tympanic membrane rupture and vestibulitis. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel