Citation Nr: 21063218 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-06 461 DATE: October 13, 2021 ORDER Service connection for an acquired psychiatric disability is denied. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder secondary to service-connected left ear hearing loss or tinnitus, or otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder due to service or a service-connected disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from July 1980 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. It was previously remanded for additional development in April 2019 and February 2021. The Veteran contends that he has a psychiatric disability related to his period of active service, or alternatively, secondary to his service-connected tinnitus and left ear hearing loss. "Direct" service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. The record includes evidence of a personality disorder. Personality disorders are not diseases or injuries for service connection purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. However, a disease or injury that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. The Board concludes that, while the Veteran has a diagnosis of depressive disorder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran's service records show that he was disciplined in December 1982 for striking a noncommissioned officer and being drunk and disorderly. In November 1983, he went absent without official leave (AWOL) for about 4 weeks. In March 1984, the Veteran received an unsatisfactory rating for failure to display proper military courtesy, respond promptly to orders, or be respect towards cadre members. Despite these incidents, there is no diagnosis of a psychiatric disability during service. During his March 1984 separation, the Veteran underwent a mental status evaluation due to his misconduct. The evaluation showed normal findings and the Veteran was found to be mental responsible and capable of understanding the proceedings of his discharge. In an accompanying medical history report, he indicated he was in good health and denied any depression, trouble sleeping, memory loss, nervous trouble, or other psychiatric symptoms. The earliest diagnosis of a psychiatric disorder is February 2004, when VA treatment records show he had a mood disorder and alcohol dependence. In a September 2017 opinion, a private examiner stated that it was more than likely that the Veteran had depressive disorder which began in military service and continued uninterrupted since then. This was based on the statements from the Veteran and his sister, who wrote that the Veteran was upbeat and family-oriented prior to service. However, he returned from service withdrawn, estranged from his family, using vulgar speech, and exhibiting other behavioral changes. In support of her opinion, the private examiner also cited to medical literature regarding the impact of active service on depression, anxiety and quality of life satisfaction. However, the opinion is not probative because the preponderance of the evidence weighs against finding that an in-service incurrence of depressive disorder or another psychiatric disability occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). As noted, service treatment records are negative for any diagnoses or other findings of a psychiatric disability, including the mental status evaluation and medical history report generated at separation. The private examiner did not address these findings when she concluded that depressive disorder began during service. Instead, her opinion is based primarily on the recent statements of the Veteran and his sister. While those statements are entitled to some probative weight, they are less probative than the service treatment records regarding the state of the Veteran's health during service. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (contemporaneous medical findings may be given more probative weight). In addition, the literature cited by the private examiner only noted that depression influenced the association between military service and life satisfaction. Depression mitigated the positive impact of military service on life satisfaction, such that depressed men with a history of service were just as likely to be satisfied with life as depressed men without a military history. This does not support a finding that the Veteran's depressive disorder had its onset during service or is otherwise related to service. Notably, the Veteran underwent a VA examination in November 2014. That examiner only diagnosed antisocial personality disorder, which, as noted above, is not something which can be service-connected. Therefore, service connection on a "direct" basis is not warranted. The Veteran also asserted that depressive disorder was secondary to his service-connected tinnitus and left ear hearing loss. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has depressive disorder, the preponderance of the evidence is against finding that it is is proximately due to or the result of or aggravated beyond its natural progression by any service-connected disability. 38 U.S.C. § 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2014 VA examiner found that the Veteran's depression and anxiety were associated with is personality disorder and substance abuse disorders, but not due to hearing loss or tinnitus. This was based on the Veteran's specific statement during the examination that his depression is related to his heart condition, which is not service-connected. In addition, the September 2017 private examiner stated that the depressive disorder she diagnosed is aggravated by the Veteran's tinnitus. This opinion is not probative for two reasons. First, the private examiner cited an April 2014 VA examination as stating that tinnitus impacted the Veteran's ordinary conditions of daily life, including the ability to work. However, a review of the examination report shows that the examiner specifically indicated that tinnitus did not impact ordinary conditions of daily life. Second, the private examiner did not address the Veteran's November 2014 VA examination comment that his depression was related to a heart condition. Third, VA will not concede that a nonservice-connected condition was aggravated by a service-connected disability unless the baseline level of severity of the nonservice-connected condition 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 condition. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) 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. 38 C.F.R. § 3.310(b). This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). It was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. In this case, no baseline level for depressive disorder has been established. In sum, the overall weight of the evidence is against a finding that depressive disorder is caused or aggravated by the Veteran's service-connected hearing loss or tinnitus. Therefore, service connection on a secondary basis is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.