Citation Nr: 18154675 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 12-08 664 DATE: November 30, 2018 ORDER Service connection for an acquired psychiatric disorder, to include unspecified depressive disorder and major depressive disorder with psychotic features (depression), as secondary to osteoarthritis of the left shoulder (shoulder disability), is granted. REMANDED Service connection for a substance use disorder as secondary to depression is remanded. Service connection for a bilateral foot disability, to include plantar fasciitis, bilateral pes cavus, Morton’s neuroma and bilateral calcaneal spurs, is remanded. Service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s depression is proximately due to his service-connected shoulder disability. CONCLUSION OF LAW The criteria for entitlement to secondary service connection for depression are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1978 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and April 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. In September 2017, the Board remanded the claims on appeal for additional development. The Veteran’s claims have been recharacterized as above to ensure that the Veteran is afforded every possible consideration. 1. Service connection for depression, as secondary to a shoulder disability, is granted. The Veteran asserts that he has experienced psychiatric symptoms since his military service. He has also asserted that his depression is related to his service-connected shoulder disability. See December 2016 VA Form 21-526EZ. As secondary service connection is warranted, only that theory of entitlement will be addressed. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability is either (a) proximately due to or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s medical records demonstrate a complex medical history, with numerous psychiatric diagnoses, including multiple diagnoses related to depression, psychosis, and substance use. See, e.g., January 2017 VA Treatment Note (major depressive disorder w/ psychotic features, previous diagnosis of schizoaffective disorder r/o antisocial personality disorder, various substance use disorders). He is also service-connected for his shoulder disability. Thus, this case turns on whether there is a nexus between his current psychiatric symptoms and his shoulder disability. The Veteran presented for a VA psychiatric examination in November 2017. The examiner diagnosed the Veteran with unspecified depressive disorder, as well as several substance abuse disorders in remission. He noted that while the Veteran had a diagnosis of posttraumatic stress disorder (PTSD) and schizoaffective disorder in his treatment records, he did not meet the DSM-5 criteria for those diagnoses, and supported this conclusion with detailed rationale. The examiner opined that the Veteran’s depression was at least as likely as not due to the Veteran’s service-connected shoulder disability, as “[p]ain is a well-known factor in depression and [the Veteran’s] pain contributes meaningfully to the maintenance of his depression. See November 2017 VA Psychiatric Examination Report. There is no competent medical opinion to the contrary. Accordingly, the Board finds that the Veteran’s depression is proximately due to his service-connected shoulder disability. Thus, the criteria for service connection for depression as secondary to the Veteran’s shoulder disability are met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. REASONS FOR REMAND 2. Service connection for a substance use disorder as secondary to depression is remanded. The November 2017 psychiatric examiner explained that the Veteran’s psychotic symptoms were related to substance use disorder, and stated that the Veteran’s substance use disorder was in remission. However, the evidence of record shows active substance abuse during the appeal period, and the Veteran has consistently reported using substances due to his depressive symptoms, including after periods of abstinence. Thus, remand is necessary to obtain an opinion regarding whether any of the Veteran’s substance use disorders are caused or aggravated by his service-connected depression, as was directed by the September 2017 Board remand. Updated treatment records should also be secured. 3. Service connection for a bilateral foot disability, to include bilateral pes planus and bilateral calcaneal spurs, is remanded. Remand is necessary for an addendum opinion addressing calcaneal spurs, Morton’s neuroma and pes cavus diagnosed during the appeal period. 4. Service connection for bilateral hearing loss is remanded. In confirming the April 2011 VA examiner’s opinion that the Veteran’s bilateral sensorineural hearing loss was less likely than not the result of in-service noise exposure, the VA audiologist who provided the November 2017 addendum opinion refuted the plausibility of delayed-onset hearing loss based on an Institute of Medicine report from 2005 (IOM Report), citing the IOM Report for the proposition that “there is no reasonable basis for delayed-onset hearing loss in humans at this time.” The United States Court of Appeals for Veterans Claims (Court) has noted that medical opinions citing to the IOM Report in this manner appear to misstate or incompletely contemplate the report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 U.S. App. Vet. Claims LEXIS 1646 (Oct. 28, 2016); Pursell v. Shulkin, No. 16-3102, U.S. App. Vet. Claims LEXIS 1607 (Oct. 31 2017); Howard v. Shinseki, No. 11-1551, 2012 U.S. App. Vet. Claims LEXIS 1669 (Aug. 1, 2012); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited to or relied upon for any persuasiveness or reasoning they contain). Although the IOM Report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss can begin years after noise exposure (IOM Report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. While a portion of the IOM Report found that there is insufficient evidence of delayed-onset hearing loss due to noise exposure, another portion of the IOM Report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM Report at 203-4.) The Court has noted that this language may support a theory of service connection involving a veteran’s delayed perception of the onset of hearing loss. See, e.g., Lemmons, 2016 U.S. App. Vet. Claims. LEXIS 1646, at *6. Accordingly, any citation to the IOM Report should contemplate all of its pertinent findings. For the above reasons, the issue must be remanded again for an addendum opinion. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion addressing the etiology of the Veteran’s polysubstance abuse. The claims file should be made available to and should be reviewed by the examiner. No additional examination is needed, unless the examiner determines otherwise. Regarding diagnosed Veteran’s polysubstance abuse, which was in remission during the prior November 2017 examination but has been active during the appeal period, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder: (a) is proximately due to the Veteran’s depression; or (b) has been aggravated (worsened beyond natural progression) by the Veteran’s depression. The examiner should discuss the Veteran’s psychiatric hospitalizations, to include hospitalizations in January 2015, September 2015, March 2016, and January 2017, as well as his reported suicide attempts involving substance use due to feeling depressed. A complete rationale must be provided, including a discussion of any evidence or medical principles relied upon by the examiner. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. Then obtain an addendum opinion addressing the nature and etiology of pes cavus, Morton’s neuroma and bilateral heel spurs diagnosed during the appeal period. No additional examination is needed, unless the examiner determines otherwise. The claims file should be made available to and should be reviewed by the examiner. For diagnosed pes cavus (see January 2011 VA treatment record), Morton’s neuroma (see December 2014 VA treatment record) and heel spurs (see December 2010 VA X-ray), state whether it is at least as likely as not (a 50 percent or greater probability) that such disorders had their onset during active duty or are otherwise related to the Veteran’s service, to include as a result of the cumulative impact of walking eight hours per day in boots as a security specialist. In addressing this question, please concede the Veteran’s competent and credible report of in-service foot pain due to extensive walking on boots. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 5. Then obtain an addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss. The claims file should be made available to and be reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s bilateral hearing loss had its onset in or is otherwise related to active service, including conceded acoustic trauma sustained therein. The absence of hearing loss pursuant to 38 C.F.R. § 3.385 during service cannot, standing alone, serve as a basis of a negative opinion. Moreover, the examiner must discuss the IOM Report on noise exposure in the military (cited as authority in the November 2017 VA Addendum Opinion), which states that it is “unlikely” that the onset of hearing loss begins years after noise exposure, but also states that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel