Citation Nr: 21007816 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-33 439 DATE: February 10, 2021 REMANDED Entitlement to service connection for depression, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1973 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2010 rating decision, the RO, in pertinent part, continued its denial of entitlement to service connection for depression, claimed as secondary to bilateral hearing loss and tinnitus. In December 2010, VA received the Veteran’s Notice of Disagreement. Following the issuance of a Statement of the Case (SOC) in October 2012, the Veteran perfected a timely appeal via his submission of a VA Form 9 in November 2012 (received December 2012). In his November 2012 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested a Board hearing at the RO. Although he was duly notified of the time and date of the hearing in a July 2019 letter, he failed to appear without explanation for the August 2019 hearing. Because the Veteran has not requested a new hearing or shown good cause as to his failure to appear, the hearing request is deemed withdrawn. 38 C.F.R. § 20.603. In January 2020, the Board remanded the matter for further evidentiary development. In accordance with the prior remand, the Veteran’s social security records and updated treatment records were associated with the claims file. In July 2020, the RO issued a Supplemental Statement of the Case (SSOC). 1. Entitlement to service connection for depression, to include as secondary to a service-connected disability. The Veteran contends that his service-connected bilateral hearing loss and tinnitus caused his depression. The Veteran claims his tinnitus is so bad it is making him feel insane. See January 2009 Statement in Support of Claim. In pertinent parts the Veteran’s in-service treatment records show he was treated for substance abuse while in service and received a diagnosis of neurotic depression in September 1973. The Veteran reported that his substance use pre-dated his active service and continued while on active duty. While on active duty he reported using alcohol, LSD, marijuana, opioids, amphetamines and barbiturates. In September 1973 the Veteran underwent a mental status evaluation related to his discharge due to unfitness, which noted the Veteran did not have a significant mental illness. In September 1973, during his separation medical examination, the Veteran reported frequent trouble sleeping, and depression or excessive worry. An August 1973 in-service treatment note indicates the Veteran was admitted to the hospital for amphetamine withdrawals following a six-day binge of IV and P.O. amphetamines followed by a bout of Quaaludes and whisky. The Veteran was diagnosed with chronic drug abuse and amphetamine withdrawal. In pertinent parts, the Veteran attended group and individual behavioral health therapy from January 2010 to May 2011. The Veteran reported he occasionally has anxious dreams with some military content. A January 2011 psychiatry note reports the Veteran’s impression as dysthymia secondary to medical problems (tinnitus and impaired hearing), polysubstance abuse in remission, cognitive disorder not otherwise specified. To the extent that this is meant as an etiological opinion, it is conclusory in nature and also appears to be based solely upon the Veteran’s lay reports. The Board notes that mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, Vet. App. 406, 409 (1995). In May 2012 the Veteran was afforded a VA examination, at which time an examiner noted diagnoses of dysthymic disorder; alcohol abuse, in early remission; and polysubstance dependence, in sustained full remission. The Veteran reported his depressed mood began in 1974 because he was getting into trouble and could not get involved with the right people or things. The Veteran described that time as “it was chaos” and he reported he “would get loaded.” The Veteran reported at that time he was using LSD, alcohol, Peyote, Mescaline, Barbiturates, and heroin. The examiner opined that it is less likely than not that the Veteran’s current acquired psychiatric disorder was proximately due to or the result of his service-connected bilateral hearing loss. The examiner explained that the Veteran reports he “was branded” by his involuntary military discharge, Under Honorable Conditions, for alcohol abuse with driving drunk on base, and became depressed after he was discharged. The Veteran noted it was one of his major defeats in his lifetime. The examiner went on to explain that because the Veteran himself did not associate hearing loss with his depressed mood, it is not likely that the acquired psychiatric disorder is related to his hearing loss. In an April 2013 psychiatry note, the Veteran reported his hearing problems have been getting worse and that is also worsening his depression. The psychiatrist, Dr. N.G.B., did not offer a medical opinion regarding how the Veteran’s hearing loss was causing or aggravating his depression. In a November 2014 psychology note, the Veteran reported his depressive symptoms peaked with the racial problems he experienced in the service. He also reported he was at an all-time low after discharge because of the shame he was experiencing due to the medical discharge related to alcohol and drug problems after only one year of service. In February 2015, the Veteran was afforded a second VA examination. During the examination the Veteran reported he was beat up twice while in the service and his things were stolen twice. The examiner opined the Veteran’s depression is less than likely not aggravated beyond its natural progression by his service-connected bilateral hearing loss. The examiner goes on to explain it is not possible to differentiate the impact of the hearing loss from the substance use on depressive symptoms. The examiner notes the Veteran reported that the hearing difficulties have kept him away from people, because they tend to think he is aggressive. But then the examiner goes on to say alcohol and use of other substances are impacting depression symptoms as well. The Board concludes that the opinions provided by the VA examiners are inadequate. First, the May 2012 VA examination was conducted under DSM-IV; however, DSM-5 applies to this case based on the date it was first certified to the Board. Additionally, the examination only offers an opinion as to causation, the exam is silent as to aggravation. Finally, the examiner’s etiology opinion is inadequate as it rested upon the Veteran’s association between the two disorders, rather than the use of medical expertise. As to the February 2015 VA examination, it is internally inconsistent. The examiner noted the bilateral hearing loss does not aggravate the Veteran’s depression but then the examiner opined that both the bilateral hearing loss and substance use are impacting the depression. Additionally, the examiner opined that they cannot differentiate the impact of the hearing loss from substance use on depressive symptoms but provided no explanation as to why. Therefore, the examiner needs to provide an explanation as to why they cannot offer an opinion without speculation. Finally, the Veteran contends his depression is secondary to his service-connect bilateral hearing loss and tinnitus, but the VA examinations only address the Veteran’s hearing loss and are silent as to the tinnitus. Thus, the Board finds that a remand is necessary in order to obtain a new medical examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, it must provide one that is adequate for purposes of the determination being made). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the nature and etiology of his claimed psychiatric disorders. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any symptoms. After reviewing the claims file, the examiner should delineate all psychiatric disorders present upon examination and during the period on appeal under DSM-5 criteria. If depression is not diagnosed, an explanation should be provided. For all diagnosed psychiatric disorders, the examiner should opine as to the following: (i) Is it at least as likely as not (50 percent or greater probability) that any identifies psychiatric disorder(s) had its/their onset in service or is/are otherwise related to the Veteran’s active service? (ii) If not, is it at least as likely as not (50 percent or greater probability) that any identified psychiatric disorder(s) is/are proximately due to or the result of the Veteran’s bilateral hearing loss and/or tinnitus? (iii) If not, is it at least as likely as not (50 percent or greater probability) that any identified psychiatric disorder(s) has/have been permanently aggravated beyond its/their natural progression by bilateral hearing loss and/or tinnitus? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. In providing the requested opinions, the clinician should review the relevant evidence of record. Although the entire claims file is to be considered, the clinician’s attention is directed to (a) September 1973 in-service treatment notes, mental status examination, and the separation medical examination; (b) August 1973 in-service treatment notes; (c) the Veteran’s January 2009 lay statement (that his tinnitus was becoming so severe that he felt that he was going insane); (d) January 2010 to May 2011 psychiatric treatment notes; (e) January 2011 psychiatric note; (f) May 2012 VA examination and February 2015 VA examination; (g) April 2013 psychiatric notes; and (h) November 2014 psychiatric notes. Provide a clear rationale for all opinions and a discussion of the facts and medical principles involved in forming the medical opinion. Additionally, in providing the requested opinions, the clinician should consider the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran’s reported symptoms. (Continued On Next Page) If there is any medical reason to accept or reject the proposition that bilateral hearing loss and tinnitus caused or aggravated depression, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how depression is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.