Citation Nr: 21066702 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-44 223 DATE: November 1, 2021 ORDER Entitlement to service connection for depression, including as secondary to service-connected left knee disability, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD), including as secondary to service-connected left knee disability, is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than depression or PTSD, to include bipolar disorder, including as secondary to service-connected left knee disability, is remanded. Entitlement to service connection for right hip degenerative arthritis as secondary to service-connected left knee disability is remanded. Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's depression began during active service. 2. The Veteran has not been diagnosed with PTSD. 3. The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for depression, to include as secondary to service-connected left knee disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for PTSD, including as secondary to service-connected left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1980 to July 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in April 2021. As the medical evidence contains multiple psychiatric diagnoses, the Board has recharacterized the claims on appeal accordingly. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). In order to establish service connection for a disability on a secondary basis, there must be (1) medical evidence a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection, or link between, the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for depression, including as secondary to service-connected left knee disability The Veteran contends that he has depression as a result of his service. Specifically, he claims that he was the first to arrive on the scene of an airplane crash that resulted in six fatalities while stationed in Shemya Air Force Base in Alaska. See VA Form 21-0781. In the alternative, the Veteran contends that his depression is secondary to his service-connected left knee disability. The Veteran submitted an internet article regarding the airplane crash in Alaska. The VA has acknowledged that the Veteran's personnel records confirm that he was stationed at Shemya Air Force Base at the time of the accident. The Veteran's military occupational specialty was a fire protection specialist. The Veteran's service treatment records show that he was treated for depressive symptoms in August 1980 due to the death of his brother. He was noted to continue to experience depression in September 1980. In May 1981, the Veteran was noted to have problems dealing with his brother's death and was diagnosed with adjustment disorder with mixed emotional features. In November 1982, the Veteran was noted to have a problem dealing with his emotions. In December 1982, the Veteran participated in group psychotherapy and reported having unresolved feelings about the death of his brother. He was noted to have a diagnosis for adjustment disorder and depressed mood. In June 1983, the Veteran reported recently breaking up with his girlfriend and was diagnosed with acute depression. In August 2012, the Veteran's employer found that he was disabled in his position as a postal clerk due to his depression. The Veteran's post-service treatment records include VA treatment records from June 2016 showing that he has had a long history of depression and bipolar disorder. He was noted to have a diagnosis of depression at the time. At the April 2021 Board hearing, the Veteran testified that he has been experiencing depression since his time in service. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, the Veteran was diagnosed with adjustment disorder and depression while in service. VA treatment records also indicate that the Veteran has a current diagnosis of depression and has had a long history of such. The Veteran has also competently reported feeling depressed ever since his service, which is consistently corroborated by the objective medical evidence of record. The Veteran has experienced continuity of symptomatology of his depression from his time in service to the present. The Veteran was also diagnosed with depression in service and reported to have a longstanding history and current diagnosis of such in VA treatment records. Accordingly, the Board finds that service connection for depression is warranted. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 2. Entitlement to service connection for PTSD, including as secondary to service-connected left knee disability The Veteran contends that he has PTSD as a result of his service. In the alternative, the Veteran contends that his PTSD is secondary to his service-connected left knee disability. As noted above, the VA has acknowledged that the Veteran's personnel records confirm that he was stationed at Shemya Air Force Base at the time of a plane crash in March 1981. The Veteran was provided with a VA PTSD examination in August 2016 where he was not found to have a diagnosis for PTSD because his symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. The VA examiner noted that the Veteran reported "that he received ECT treatments at IOL due to symptoms of PTSD," but "there is no report of any symptoms of PTSD or any mention of the plane crash or any distress related to his military service within those records surrounding the ECT treatments." The examiner added that the Veteran "does not meet DSM-V criteria for PTSD and his reports of these related symptoms in recent months is inconsistent with his military service treatment records and with his mental health treatment records in the last few years." The Board finds that as the Veteran has not been diagnosed with PTSD, and the record does not include any competent medical evidence of a current disability, service connection for PTSD on a direct and secondary basis is not warranted. The August 2016 VA examiner explained that the Veteran did not meet the DSM-V criteria for PTSD and this his recent reports of symptoms were not consistent with his medical treatment records. In the absence of a current diagnosis, service connection for PTSD is not warranted. Accordingly, the Board finds that the claim of entitlement to service connection for PTSD must be denied on a direct and secondary basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus as a result of noise exposure in service. The Veteran's service treatment records do not indicate any complaints or treatment for tinnitus. The Veteran's post-service treatment records include VA treatment records from October 2013 where the Veteran denied having tinnitus. The Veteran was provided with a VA hearing loss and tinnitus examination in September 2016 where he again denied having tinnitus. VA treatment records from April 2019 also show that the Veteran denied having tinnitus. At the April 2021 Board hearing, the Veteran testified that he has had tinnitus since before 2016. While the Board finds that the Veteran is competent to report symptoms of tinnitus, the objective contemporaneous medical evidence of record in this case is considered more probative than his lay statements regarding the onset of his tinnitus. As noted above, VA treatment records show that the Veteran denied having tinnitus on multiple occasions over the years. These records contradict the statements that the Veteran made regarding an ongoing issue since service, reducing the probative value of his lay evidence regarding the issue. The medical evidence demonstrates that the current disability has not been continuously present since service. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992) (holding that a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility). To the extent the Veteran argues that his current tinnitus is related to service, the Veteran in this case is not competent to provide a nexus opinion regarding the issue. Although the Veteran is competent to report symptoms of ringing in his ears, he is not competent to report on the etiology of such. The issue is medically complex, as it requires knowledge of pathology and the Veteran lacks the skills and experience to relate his tinnitus to his service. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As noted, the Board finds that the Veteran's lay statements are not competent to establish that tinnitus is related to his service. Aside from these statements, the evidence of record does not contain any competent evidence suggesting a link between his current disability and his active duty service. Accordingly, the Board finds that service connection for tinnitus has not been established and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than depression or PTSD, to include bipolar disorder, including as secondary to service-connected left knee disability The Veteran contends that he has an acquired psychiatric disorder other than depression or PTSD, to include bipolar disorder, as a result of his service. In the alternative, the Veteran contends that his bipolar disorder is secondary to his service-connected left knee disability. As noted above, the VA has acknowledged that the Veteran's personnel records confirm that he was stationed at Shemya Air Force Base at the time of a plane crash. The Veteran's post-service treatment records include VA treatment records from June 2016 showing that he has had a long history of bipolar disorder. The Veteran was provided with a VA PTSD examination in August 2016 where he was noted to have a diagnosis for bipolar disorder and alcohol use disorder. The VA examiner noted that the Veteran had "a history of depression since he was a child." However, the Board notes that the Veteran's January 1980 enlistment examination did not document an acquired psychiatric disorder. Thus, the Veteran is presumed sound upon entry into service. 38 U.S.C. § 1111. The Veteran submitted a statement from his brother in May 2021 indicating that the Veteran became angry and depressed following his left knee injury. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder other than depression and PTSD, to include bipolar disorder, because no VA examiner has opined whether his bipolar disorder is secondary to his service-connected left knee disability. 2. Entitlement to service connection for right hip degenerative arthritis as secondary to service-connected left knee disability The Veteran contends that he has right hip degenerative arthritis as a result of his service-connected left knee disability. The Veteran was provided with a VA hip and thigh conditions examination in September 2016 where he was noted to have a diagnosis of degenerative arthritis of the right hip. The VA examiner opined that the Veteran's right hip disability was less likely than not related to his left knee disability and "more likely related to age and occupation." The examiner noted that "there is no medical evidence that demonstrates 'altered gait' results in development of any chronic condition in proximal or contralateral joints or spine greater than in the general population." An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). As such, the issue must be remanded for an addendum medical opinion that addresses aggravation. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). 3. Entitlement to service connection for hearing loss The Veteran contends that he has hearing loss as a result of noise exposure in service. The Veteran's service treatment records show that he perforated his right tympanic membrane while using a Q-tip in January 1981. In February 1981, the Veteran was noted to have a traumatic perforation of the right tympanic membrane. The Veteran's post-service treatment records include VA treatment records from October 2013 indicating that the Veteran has hearing loss in his left ear since service from the rupture of his eardrum. The Veteran was provided with a VA hearing loss examination in September 2016 where he was noted to have hearing loss for VA purposes in the left ear only. The examiner opined that the Veteran's left ear hearing loss was less likely than not due to his service because although "there was a significant shift in threshold consistent with acoustic trauma at 6 kHz but threshold was still within normal limits at discharge." The VA examiner noted that the current examination showed "mild hearing loss but a 2005 study by the Institute of Medicine (IOM) entitled Noise and Military Service-Implications for Hearing Loss and Tinnitus, the IOM stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure." The examiner added that "the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was 'unlikely.'" At the April 2021 Board hearing, the Veteran testified that his hearing has gotten worse since the September 2016 VA examination. He also stated that he has had problems with his hearing since his time in service. Accordingly, the Board will give the Veteran another opportunity to attend a VA audiology examination to determine if he has a current diagnosis for hearing loss in his right ear, and whether any hearing loss is due to his noise exposure in service. The VA examiner should also consider the Veteran's traumatic perforation of the right tympanic membrane while in service and the Veteran's reports of continuity of hearing problems since his time in service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician for the Veteran's acquired psychiatric disability other than depression or PTSD, to include bipolar disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The claims file should be made available for review. The examiner should provide an opinion on the following: a) Is it at least as likely as not that any identified acquired psychiatric disability other than depression or PTSD, to include bipolar disorder, had causal origins in service or is otherwise related to the Veteran's active duty service? b) Is it at least as likely as not that the Veteran's acquired psychiatric disability other than depression or PTSD, to include bipolar disorder, was caused by his service-connected left knee disability? c) If not, is it at least as likely as not that the Veteran's acquired psychiatric disability other than depression or PTSD, to include bipolar disorder was aggravated by his service-connected left knee disability? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case 2. Obtain an addendum opinion from an appropriate clinician for the Veteran's right hip disability. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The claims file should be made available for review. The examiner should provide an opinion on the following: a) Is it at least as likely as not that the Veteran's right hip disability was caused by his service-connected left knee disability? b) If not, is it at least as likely as not that the Veteran's right hip disability was aggravated by his service-connected left knee disability? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss disability. The Veteran's claims file should be made available to the examiner. The examiner should provide an opinion on the following: a) Is it at least as likely as not that any identified hearing loss disability had causal origins in service or is otherwise related to the Veteran's active duty service? In providing an opinion, the examiner should consider the Veteran's treatment for a perforated right eardrum in January 1981. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.