Citation Nr: 18157397 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-40 640 DATE: December 13, 2018 ORDER Entitlement to service connection for depressive disorder is granted. REMANDED Entitlement to service connection for emphysema is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDING OF FACT With resolution of any doubt in the Veteran’s favor, his diagnosed depressive disorder has been aggravated by his service-connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for depressive disorder have been met. 38 C.F.R. § 3.310 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1972 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. REFERRED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was raised in a March 2016 statement by Dr. H.H.G. and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Entitlement to service connection for depressive disorder Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be granted for any disease 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). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). In a claim for secondary service connection, the regulation provides that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between the service-connected disability and the condition said to be proximately due to the service-connected disability. Buckley v. West, 12 Vet. App. 76, 84 (1998). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). VA will not concede that a non-service-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. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The Veteran seeks service connection for a mental condition. Having reviewed the record related to this claim, the Board has determined that service connection is warranted on the basis of aggravation of the Veteran’s depressive disorder. A March 2016 Mental Disorder Disability Benefits Questionnaire (DBQ) noted a diagnosis of unspecified depressive disorder. The examiner opined that the Veteran’s tinnitus has aggravated the depressive disorder. The examiner based her opinion on his brother’s lay statement and interview of the Veteran. The examiner also included a medical article showing a relationship between tinnitus and depression. She pointed to relevant records that also supported her findings. The Veteran’s brother submitted a statement dated in February 2016 explaining that the Veteran’s ringing in his ears that began in service has made him depressed. He no longer wants to be around a group of people because he cannot understand what others are saying. He also now declines to do outdoor activities that he once was fond of doing. As there is an informed medical opinion indicating that the claimed depressive disorder has been aggravated by the Veteran’s service-connected tinnitus, the Board concludes that service connection is in order. REASONS FOR REMAND The March 2016 Mental disorder DBQ notes that the examiner reviewed VA Records. VA Medical records are not included in the claims file and should be obtained prior to adjudication of the issues of entitlement to service connection for emphysema and a sleep condition. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran claims that he has a sleep disorder. During the August 2014 examination, the Veteran reported that it was hard to get to sleep because of his tinnitus. The March 2016 Mental DBQ also noted chronic sleep impairment due to his depressive disorder. An examination is needed to determine if the Veteran has a sleep condition that is separate and distinct from symptoms of his psychiatric disability. If he has a separate sleep disability, an opinion is needed to determine if it is related to service or aggravated by his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should determine if the Veteran has a sleep disorder that is separate and distinct from symptoms of his psychiatric disability. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disabilities, to included depressive disorder and tinnitus, or (2) aggravated beyond its natural progression by service-connected disabilities, to include depressive disorder and tinnitus. (Continued on the next page)   3. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel