Citation Nr: 20036628 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 09-49 344 DATE: May 28, 2020 ORDER Service connection for an acquired psychiatric disorder is granted. REMANDED Service connection for tinnitus is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s acquired psychiatric disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to August 1985. In December 2017, the Board of Veterans’ Appeals (Board) denied service connection for tinnitus and an acquired psychiatric disorder. The United States Court of Appeals for Veterans Claims (Court) then set aside the Board’s decision and remanded for further proceedings in a July 2019 memorandum. Service connection for an acquired psychiatric disorder The Court held that the Board failed to provide adequate reasons and bases in denying service connection for a psychiatric disorder. Specifically, the Board did not address all of the Veteran’s lay statements, such as his contention that he self-medicated with alcohol and exhibited “irrational” behaviors during service. Memorandum at 3. In light of new medical evidence submitted since the Court’s remand, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Following the Court’s remand, the Veteran submitted two private opinions on the onset and etiology of his psychiatric symptoms. The Board finds this new medical evidence sufficient to show a nexus between his disability and service. In March 2020, “M.B.,” a licensed clinical social worker, evaluated the Veteran and found it at least as likely as not that his schizoaffective disorder was related to service. She wrote that the Veteran exhibited symptoms, such as anxiety, depressed mood and auditory hallucinations, while stationed aboard the U.S.S. Fulton. She also opined that the Veteran’s well-documented alcohol use during service was a “coping mechanism” for increased stress related to his contentious relationship with the ship’s captain. In May 2020, “S.K.,” a clinical psychologist, concurred that the Veteran’s symptoms manifested during service and that his history of substance abuse was secondary to his psychiatric disability. S.K. also noted that the Veteran did not disclose the full extent to which he was “psychologically and physically impacted by the hostile and stressful environment” of the U.S.S. Fulton at the time because he feared retaliation from the captain. The Board finds these two private opinions to be more probative than the VA opinions of record, which focused primarily on the lack of documented psychiatric symptoms and treatment during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Unlike the VA opinions, the opinions of M.B. and S.K. reflect consideration of the Veteran’s competent, credible statements regarding the onset of his subjective symptoms and personal history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also notes that while service treatment records do not show specific treatment for mental health concerns, they do confirm that the Veteran received counseling for alcohol dependence. This contemporaneous medical evidence also indicates the Veteran exhibited “loss of control, violent personality changes, frequent fights, [and] decreased work performance,” which is consistent with the Veteran’s account and supports the inference that at least some of his current symptoms manifested during service. Accordingly, resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that his psychiatric disability is etiologically related to service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection is granted. REASONS FOR REMAND The Court also held that the 2008 VA audiological examination on which the Board relied was inadequate because the examiner failed to consider the possibility of delayed-onset tinnitus. In accordance with the Court’s instructions, the Board is remanding the claim for a new examination and opinion. The matter is therefore REMANDED for the following action: 1. Schedule the Veteran for an audiological examination. After reviewing the relevant evidence, the examiner must provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus is etiologically related to service or manifested within one year of separation. The examiner’s opinion should reflect consideration of the possibility of delayed-onset tinnitus, as well as the Veteran’s lay statements regarding in-service noise exposure and the onset of his symptoms. 2. Review the above opinion to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 3. Readjudicate the claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his attorney the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.