Citation Nr: 18152606 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-26 499 DATE: November 23, 2018 ORDER Entitlement to service connection for major depressive disorder, recurrent, severe with psychotic features, is granted. Entitlement to service connection for tension headaches and migraines, as secondary to major depressive disorder, is granted. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension, to include as secondary to major depressive disorder, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to major depressive disorder, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, her major depressive disorder, recurrent, severe with psychotic features began during active service. 2. The Veteran’s tension headaches and migraines are proximately due to her service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for tension headaches and migraines have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from November 1989 until January 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision and an August 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In her June 2016 and August 2017 substantive appeals the Veteran declined Board hearings before a Veterans Law Judge (VLJ). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with her claim decided herein are moot. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for major depressive disorder The Veteran alleges that her psychiatric symptoms began during service and have existed since that time. Specifically, in an October 2013 statement, the Veteran alleges symptoms began after a motor vehicle accident that occurred during service in November 1991. First, the Board finds that there is a current disability. A July 2018 private treatment examination shows a diagnosis of major depressive disorder, recurrent, severe with psychotic features. The Board notes the Veteran filed a claim for a psychiatric disorder to include major depressive disorder, posttraumatic stress disorder (PTSD), and sleep trouble. However, the records established the Veteran has no current diagnosis for PTSD. Additionally, the Veteran’s sleep trouble is included as a symptom of her major depressive disorder. Second, the Board finds that there was an in-service event, injury or disease. In an October 2013 statement, the Veteran reported she was the passenger involved in a car accident on November 1991 while on active duty. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). A police report confirms the Veteran’s husband was the driver involved in the car accident in November 1991. The Board finds the Veteran’s statements competent and credible because they are corroborated by the evidence of record. Finally, the Board notes that there is conflicting evidence of record regarding whether the Veteran’s major depressive disorder is related to her active service. The Veteran was afforded a VA examination in February 2015. The examiner opined the Veteran’s depression was not caused by her motor vehicle accident while on active duty. The examiner based the opinion on the Veteran failing to seek treatment or report symptoms until eleven years later. In a January 2016 statement, the Veteran reiterated that she tried to deal with the symptoms alone. Additionally, the Veteran reported that she did not seek treatment but that her mother sought an involuntary commitment due to the Veteran’s mental health symptoms. A January 2002 private treatment record indicates that the Veteran’s mother filed commitment papers. The Veteran additionally submitted November 2017 lay statements from her sister and brother-in-law noting the onset of anxiousness and nervousness towards the end of the Veteran’s period of active service. They stated that when she came home, she was more argumentative and disagreeable, withdrawing from family and isolating herself. The Veteran submitted a July 2018 private medical examination and opinion. During the examination, the Veteran reported a history of social anxiety, panic attacks, and irritability since service. She noted being hospitalized in 1997 and 2002 for major depression, psychosis, and suicidal ideation. The Veteran also stated that she began self-medicating during her active service, using alcohol and marijuana to cope with her mental health issues. The private examiner opined that the Veteran’s major depressive disorder, with psychosis, more likely than not began in service. The doctor reasoned that the enumeration of events and progression of the Veteran’s mood and psychotic symptoms documented in mental examinations, service treatment records, statements, and research support a progression of the Veteran’s symptoms during service leading up to the onset of major depression and psychosis after her military discharge to the present. After consideration of the above, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s major depressive disorder had its onset during her active service. The Veteran is found both competent and credible to report feeling anxious and withdrawn while she was in service. Additionally, the private opinion is well reasoned and based on a review of the Veteran’s medical history in addition to the doctor’s knowledge as a licensed health service provider in psychology. Thus, resolving all doubt in favor of the Veteran, the probative evidence of record demonstrates her current major depressive disorder had its onset during service. Accordingly, service connection for major depressive disorder is warranted. 2. Entitlement to service connection for headaches Service connection is also warranted for a disability that is aggravated by, proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). First, as explained above, the Veteran’s major depressive disorder is service connected. Second, Veteran submitted a March 2018 Headaches Disability Benefits Questionnaire noting that the Veteran has a current diagnosis of migraines and tension headaches. Finally, the March 2018 private opinion indicates that the Veteran’s headaches are more likely than not caused and permanently aggravated by her major depressive disorder. During an interview, the Veteran reported prostrating headaches occurring spontaneously during episodes of increased distress or following crying spells in conjunction with depressive symptoms. The examiner stated that substantial literature in the medical community supports a positive cause-and-effect relationship of headaches with psychological distress, including major depression. The private physician based this opinion on an interview with the Veteran, a review of the Veteran’s records, and relevant medical literature. There is no medical opinion to the contrary. Accordingly, the Board affords the private medical opinion significant probative weight. As a preponderance of the evidence indicates that the Veteran’s headaches are caused by or aggravated by her major depressive disorder, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. First, remand is required to for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when one is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, private treatment records show a diagnosis of tinnitus in January 2002. The Veteran’s DD Form 214, certificate of release or discharge, reflects that her military occupation specialty (MOS) was a single channel radio operator, for which VA concedes moderate occupational noise exposure. Because there is evidence of currently diagnosed disability, the Veteran’s has a presumptive disease, and there is an indication that the current disability may be associated with the Veteran’s MOS, remand for a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to service connection for diabetes mellitus is remanded. 3. Entitlement to service connection for hypertension is remanded. Remand is also required to secure VA examinations for the Veteran’s diabetes mellitus and hypertension. The Veteran alleges her diabetes mellitus and hypertension are secondary to her major depressive disorder. Service connection for major depressive disorder has been granted. Accordingly, an opinion should be obtained regarding secondary service connection. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment pertinent to the Veteran’s claims. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her attorney. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her attorney. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her tinnitus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus had onset in, or is otherwise related to, active military service. The examiner should note that the Veteran’s military occupational specialty was single channel radio operator for which moderate occupational noise exposure is conceded. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her diabetes mellitus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diabetes mellitus had onset in, or is otherwise related to, active military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the diabetes mellitus is caused OR aggravated by the service-connected major depressive disorder. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active military service. (Continued on the next page)   The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is caused OR aggravated by the service-connected major depressive disorder. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel