Citation Nr: A21020140 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210713-171764 DATE: December 16, 2021 ORDER Entitlement to service connection for major depression secondary to service-connected hearing loss is granted. FINDING OF FACT The Veteran's major depression is secondary to his service-connected hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for major depression secondary to service-connected hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to December 1966 with additional service in the Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). By way of background, the Agency of Original Jurisdiction (AOJ) denied service connection for depression in a December 2020 rating decision. In April 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the December 2020 decision. In June 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2020 decision. Thereafter, in the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Said hearing occurred in August 2021, a transcript of which has been associated with the claims file and reviewed. The Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Of note, the record contains additional evidence submitted within the evidentiary window that is discussed in more detail below. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for major depression secondary to service-connected hearing loss is granted. The Veteran contends he has major depression that is secondary to his service-connected bilateral hearing loss. The Board finds service connection on a secondary basis is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection. In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 444 (1995). Here, the Veteran is service-connected for hearing loss and tinnitus. When service connection cannot be established on a secondary basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). The elements of direct service connection are: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the outset, the Board notes the AOJ issued a favorable finding that the Veteran has a diagnosis of major depression. The Board will not disturb this favorable finding. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Also of note, the AOJ developed the Veteran's service connection claim for depression under the direct theory of entitlement. Indeed, the Veteran did not raise a secondary theory of entitlement until the Board's August 2021 hearing. Upon review of the Veteran's testimony and additionally submitted evidence, the Board finds this secondary theory of entitlement has been reasonably raised and will be addressed herein. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008) (holding the Board is required to address only those issues either expressly raised by the claimant or reasonably raised by the record). While the Board does not have the benefit of a VA examination, the record contains sufficient competent medical evidence to resolve the Veteran's claim. Indeed, within the proper evidentiary window, the Veteran submitted a July 2021 private provider's opinion that the Veteran's major depression is more likely than not related as a secondary condition to his tinnitus and hearing loss. See August 2021 treatment records. The provider reasoned that based on the Veteran's treatment records, he has depression that has "worsened significantly" as his hearing loss increased especially as his hearing loss and tinnitus began interfering with his job as a school administrator and ultimately led to him having to retire. The provider explained that the Veteran's history of severe major depression began in roughly 2015 as the Veteran started experiencing the onset of his hearing loss and increased in severity as his hearing increased in severity. The private opinion is a thorough six-page report detailing the Veteran's military, medical, and familial history with an adequate rationale for all opinions expressed. The private practitioner, a licensed psychologist, is also competent to render the opinion. The Board finds the July 2021 private provider's opinion is based on the Veteran's medical history and lay statements and is supported by adequate rationale. VA outpatient treatment records show a diagnosis and treatment for depression on or around 2015, which corroborates the private opinion report as well as the Veteran's testimony before the Board regarding onset of symptoms. There is no contradictory evidence of record and the Board has no reason to discount the private opinion of record. Based on the aforementioned, the Board finds service connection for major depression secondary to service-connected hearing loss is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.